India replaced the Indian Penal Code (IPC) with the Bharatiya Nyaya Sanhita (BNS) on 1 July 2024, which the government said was a historic move towards decolonising India’s criminal justice system. The new laws were billed as modern, victim-centric and better suited to the needs of a changing nation. But underneath the promise of reform is a serious omission that has received far less attention than it deserves: the failure to legally recognise the rape of adult men and transgender persons.
The BNS continues to define rape only as an offence committed by a man against a woman. While the law rightly protects women, it completely excludes adult male and transgender victims from the offence of rape. This is not merely a drafting choice; it has real consequences for survivors who experience sexual violence but find that the law does not recognise their trauma in the same way.
Under the earlier IPC, Section 377, despite its controversial colonial origins, served an important purpose after the Supreme Court's 2018 decision in Navtej Singh Johar. While consensual same-sex relationships were decriminalised, Section 377 continued to punish non-consensual sexual acts. In several cases, this provision enabled adult male victims of sexual assault to seek justice when the offence could not be prosecuted as rape.
With the repeal of Section 377 and the introduction of the BNS, no equivalent provision was enacted to criminalise non-consensual penetrative sexual assault against adult men or transgender persons. As a result, while other criminal offences such as assault, hurt, or criminal intimidation may still apply depending on the facts, there is no offence equivalent to "rape" for these victims. The legal recognition that once existed, however limited, has effectively disappeared.
This omission did not happen because lawmakers were unaware of the issue. The Parliamentary Standing Committee on Home Affairs, while examining the proposed criminal laws, recommended that non-consensual sexual acts against any person, irrespective of gender, should be criminalised. Such a recommendation reflected the growing understanding that sexual violence is an act of power and domination, not something confined to one gender alone. Despite this advice, Parliament chose not to incorporate a gender-neutral provision.
What makes the situation even more puzzling is that the BNS adopts gender-neutral language in several other offences by replacing words such as "man" with "whoever" or "any person". Yet, when it comes to the offence of rape, the law remains firmly rooted in a gender-specific framework. This selective modernisation creates the impression that equality was embraced only where it was convenient.
The debate is not about reducing protections available to women. Women continue to face disproportionately high levels of sexual violence in India, and the law must continue to address this reality with the utmost seriousness. However, recognising male and transgender victims does not weaken women's rights. Justice is not a limited resource that must be distributed selectively. Extending legal protection to one group does not diminish the rights of another.
The Constitution of India guarantees equality before the law under Article 14 and protects every person's right to life and personal liberty under Article 21. Many legal scholars argue that denying certain victims recognition based solely on their gender raises significant constitutional questions. Whether the present framework survives judicial scrutiny will ultimately be decided by the courts, but the debate itself cannot be ignored.
Sexual violence is defined by the absence of consent, not by the gender of the victim. A society that acknowledges only some victims while overlooking others risks creating a hierarchy of suffering. Such an approach undermines the principle that every citizen deserves equal protection under the law.
India rightly sought to replace colonial-era laws with legislation that reflects contemporary constitutional values. Yet, in one significant respect, the transition appears to have left behind an entire category of victims. The measure of a justice system is not only how firmly it punishes offenders but also how fairly it recognises those who suffer.
If the objective of criminal law is to protect every citizen's dignity and bodily autonomy, then the conversation on gender-neutral sexual offences is not one that Parliament can afford to postpone indefinitely. Reform should not merely change the name of the law; it should ensure that no victim is left invisible.
References:
- Adv. Meenakshi Yadav
- Adv. Ashish Yadav
- Law Commission of India. (2000). 172nd Report on Review of Rape Laws. Government of India.
- Law Commission of India. (2017). 262nd Report: The Death Penalty. (Discusses aspects of sexual offences and criminal law reforms.) Government of India.
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