Justice should be dependent on the crime, not the gender.
When a person survives sexual violence, it not only affects a survivor physically but also mentally. It affects the bodily autonomy, dignity, and sense of security of the individual. Imagine this grave violence where the law does not give enough recognition, as it requires just because you are a male or transgender,r and punishment does not acknowledge the suffering of the survivor. What happens when the law does not recognise certain survivors under their definition of rape? This question has become central to the debate surrounding the Bharatiya Nyaya Sanhita (BNS), 2023, India's new criminal code that replaced the Indian Penal Code (IPC), 1860.

BNS has replaced the Indian Penal Code (IPC),  which had been India's main criminal law since 1860, during British colonial rule. In 2023, Parliament passed three new criminal laws to replace the colonial-era codes, and they came into force on 1 July 2024

This transition from IPC to BNS has sparked a legally significant debate regarding the exclusion of gender neutral provisions for sexual assault. The reform modernised India's criminal laws but left unresolved the long-standing debate over whether the rape laws should be gender neutral. While the BNS introduced some structural and procedural changes, one thing attracted the critics, lawyers, activists, legal scholars, and human rights organisations: its treatment of sexual offences.

What does Section 63 BNS actually say

Section 63 defines rape as an offence committed by a man against a woman, under specific circumstances such as absence of consent, coercion, deception or where consent cannot be given. This means that the sexual offence of rape remains gender specific. Under the law, the woman is legally recognised as a victim, whereas a man is recognised as an accused.

Consequently, if males and transgender individuals are subjected to this offence, then under this law, it will not be considered rape, as there’s no provision against them. It may fall under the provision of criminal law, but it will not be treated the same because Section 63 does not invoke gender neutrality. Critics argued that the provision does not provide the same legal recognition terminology for the same.

Constitutional concern regarding fundamental rights

This section 63 does not just remain gender specific but also raises the question and violates the fundamental rights of males and transgender persons by excluding them from this statutory offence, which may violate the right of equality, dignity and personal liberty that is guaranteed under the Constitution of India.

Article 14 guarantees equality before law and equal protection of law. Critics argue that when survivors of the same act of non-consensual sexual violence receive different recognition only because of their gender. It raises the question whether the law provides equal protection to all individuals.

Article 15 prohibits discrimination on the ground of sex. While there have been specific provisions for women and children under Article 15(3). Arguments raise the question that it should mean complete exclusion of male and transgender survivors of the offence.

Article 21 guarantees the right to life and personal liberty. The survivor of sexual violence suffers from these rights irrespective of gender; by limiting the offence of rape deny the male and transgender survivors equal legal recognition of the harm they have endured.

Challenges faced by transgender community

All the arguments regarding BNS being gender specific are centered to male being recognised as the accused in the act. What about transgender community? The framework is unable to reflect the realities of sexual violence experienced by transgender and other gender-diverse communities.

Although the Supreme Court, in Navtej Singh Johar vs Union of India (2018, decriminalised consensual same-sex relations between adults, and National Legal Services Authority (NALSA) vs Union of India (2014) recognised the constitutional rights of transgender persons, many activists argue that significant gaps remain within India's criminal law framework.

The Transgender Persons (Protection of Rights) Act, 2019 was enacted to safeguard the rights of transgender persons. Critics argued that some provisions remain restrictive regarding the implementation of the Act and do not address the challenges faced by transgender community. Beyond these legal barriers, they face social stigma and discrimination from society, which adds another layer of marginalisation for the community.

Need for gender-neutral laws

Sexual violence is not limited by gender. Though the majority of sexual offences are faced by women, it does not mean that men and transgender people cannot experience sexual violence. The focus should be on the absence of consent rather than focusing on gender, which only limits the law, leading to minimising the seriousness of the issue. The framework should focus on reflecting contemporary understandings of sexual violence rather than gender.

Several countries like Australia, the United Kingdom, and Canada have adopted a broader definition of gender neutral offences to ensure equal legal protection for the survivors regardless of gender.

The Indian government has generally maintained that rape laws are designed for the protection of women because they are more affected by this sexual violence in India.

Supporters of this approach argued that making gender-neutral laws could lead to misuse of them. They also note that other criminal provisions exist for male victims of sexual assault.

However, acknowledging male and transgender survivors of sexual violence does not diminish the rights and protection of women; it is important for ensuring equal rights and recognition of the law. The law creates an unequal hierarchy of victims by not giving them legal recognition, using different terminologies because of their gender.

Bhartiya Nyaya Sanhita came into existence to enhance or reform the criminal law of India. It replaced the Indian Penal Code (IPC), which was drafted under colonial rule. BNS was made to update the legal language and restructure several offences. Yet, on the major issue of rape, it followed the hierarchy of IPC remained gender specific instead of being gender neutral. BNS reflects a necessary recognition of the protection of women but is unable to address all the survivors of sexual offences.

India is evolving in science and technology but remains regressive when it comes to creating an inclusive society for all genders. This matter too needs recognition and needs restructuring of the law. India’s criminal law should define sexual violence through the lens of gender or the principle of consent.

References:

1. https://www.mha.gov.in/sites
2. https://www.ijsr.net
3. https://indiankanoon.org/doc/193543132/
4. https://indiankanoon.org/doc/168671544/
5. https://pmc.ncbi.nlm.nih.gov/articles/PMC9555747/

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