Imagine walking into a police station after surviving sexual assault.
You gather the courage to describe what happened. You answer uncomfortable questions. You expect the law to recognise what you have endured. Instead, you are told that, in the eyes of the law, what happened to you is not rape.
Not because it didn't happen. Not because there isn't enough evidence. But because of who you are.
When India replaced the Indian Penal Code (IPC) with the Bharatiya Nyaya Sanhita (BNS) in July 2024, the change was presented as a historic step towards modernising the country's criminal justice system. Outdated colonial provisions were replaced, language was updated, and lawmakers spoke of creating laws that reflected contemporary India.
Yet, hidden beneath those reforms was a question that received surprisingly little public attention.
Who gets to be recognised as a victim?
Under Section 63 of the BNS, rape continues to be defined as an offence committed by a man against a woman. The law does not recognise the rape of an adult man or a transgender person as rape. This is not merely a question of wording. In criminal law, definitions determine whether an offence exists at all.
Ironically, the law that India sought to leave behind offered a limited, though imperfect, avenue for justice. Section 377 of the IPC was primarily known for criminalising consensual same-sex relations before it was read down by the Supreme Court in 2018. Less discussed was its continued use in prosecuting certain non-consensual sexual acts against male victims after the decriminalisation of consensual relationships.
With the repeal of Section 377 and no equivalent gender-neutral provision replacing it in the BNS, a significant legal gap emerged.
Parliament was not unaware of this concern.
In 2023, the Parliamentary Standing Committee on Home Affairs recommended that non-consensual sexual acts against any person, regardless of gender, should be criminalised. The
recommendation reflected a growing understanding that sexual violence is defined by the absence of consent, not by the gender of the victim.
The proposal, however, did not find a place in the final legislation.
This creates an uncomfortable contradiction.
The BNS frequently adopts gender-neutral language when referring to offenders, replacing terms such as "man" with broader expressions like "whoever" or "any person." Yet when it comes to recognising victims of rape, the law remains firmly gender-specific.
Modern language, old boundaries.
The debate here is not about reducing protections for women. Women continue to face disproportionately high levels of sexual violence, and those protections remain essential. Recognising male and transgender survivors does not weaken those safeguards. It simply acknowledges a reality that has long existed but has often remained invisible.
Sexual violence does not ask for identity before causing trauma.
The law, however, sometimes does.
This is where the conversation moves beyond criminal statutes and enters constitutional principles. Articles 14 and 21 of the Constitution promise equality before the law and protection of life and personal liberty to every person. The question raised by many legal scholars is therefore not whether women deserve legal protection—they unquestionably do—but whether other survivors deserve to be excluded from that protection altogether.
Laws do more than punish crimes.
They shape whose pain is acknowledged.
When the law recognises one experience while remaining silent about another, that silence carries consequences. It influences reporting, policing, prosecution, and perhaps most importantly, whether survivors believe the system has room for their stories.
India's new criminal code was intended to reflect the realities of a modern republic. Yet one of the defining characteristics of any modern legal system is that justice begins with recognising the victim before categorising the offence.
Perhaps the real question is not whether the law changed.
It clearly did.
The more difficult question is whether, in rewriting the law, India unintentionally rewrote who is allowed to be seen.
References
- Bharatiya Nyaya Sanhita, 2023 – Section 63 (definition of rape).
- Parliamentary Standing Committee on Home Affairs (2023) – Report on the Bharatiya Nyaya Sanhita Bill, recommending gender-neutral protection against non-consensual sexual acts.
- Supreme Court of India, Navtej Singh Johar v. Union of India (2018) – Judgment reading down Section 377 while leaving it applicable to non-consensual acts.