Author: Sakshmit Mathur, Amity Law School, Noida
Abstract
The passing of the Bharatiya Nyaya Sanhita (BNS), 2023, in place of the Indian Penal Code, 1860, has rekindled the debate regarding the reform of rape laws in India. The BNS maintains a gendered definition of rape, which has been criticized for leaving out male, transgender, and non-binary victims. This paper critically examines whether India’s rape laws should adopt a gender-neutral framework, grounded in constitutional principles of equality and justice. It analyses the implications of both retaining gender-specific provisions and introducing gender neutrality, considering concerns of misuse, gender-based vulnerability, and social realities. Through a comparative study of jurisdictions with gender-neutral laws, the paper assesses the feasibility of such reforms in the Indian context and proposes balanced recommendations tailored to India’s socio-legal landscape.
Introduction
The statutory definition of rape under Indian criminal law has historically been gender-specific, premised on the assumption of male perpetrators and female victims. Under Section 375 of the erstwhile Indian Penal Code, 1860, rape was codified exclusively as a crime committed by a man against a woman. This restrictive formulation has been retained in the Bharatiya Nyaya Sanhita, 2023, with Section 63 continuing to define rape in strictly gendered terms, thereby excluding male, transgender, and non-binary victims from the ambit of statutory protection.
Section 63 delineates the offence of rape based on lack of consent, coercion, misrepresentation, incapacity, or minority of the victim, while Section 64 prescribes stringent penal consequences, including a minimum of ten years’ rigorous imprisonment. However, the marital rape exception—shielding non-consensual intercourse within marriage from criminal liability where the wife is above eighteen—remains intact, despite sustained constitutional and societal critique. Moreover, Section 71, which criminalizes “unnatural offences,” fails to provide a comprehensive or inclusive remedy for non-female victims of sexual assault.
The continued adherence to a gender-specific legislative framework raises pressing constitutional and jurisprudential concerns regarding the principles of equality (Article 14), non-discrimination (Article 15), and the right to life and personal liberty (Article 21). This essay challenges the normative and functional implications of the gendered understanding of rape in the BNS and examines the imperative towards reform within a gender-neutral system to achieve substantive equality and access to justice for all sexual violence survivors.
Arguments for Introducing Gender-Neutral Rape Laws in India
Gender-neutral rape laws have a host of constitutionally and ethically sound arguments focusing on equality, inclusiveness, and best practice around the world.
1. Constitutional Assurance of Equality: Article 14 of the Indian Constitution ensures equality before the law and equal protection of the laws. The current definition of rape—limited to male perpetrators and female victims—excludes male, transgender, and non-binary individuals from legal protection. This violates their fundamental rights and creates a discriminatory legal regime, contrary to constitutional principles.
2. Inclusive Protection for All Victims: Sexual violence is not confined to female victims. Excluding men and transgender individuals from the statutory definition perpetuates societal myths and denies these groups access to justice. Recognizing them as victims would affirm their dignity and address the structural invisibility in law and society.
3. International Best Practices: Many jurisdictions, including Canada, Germany, and Australia, have adopted gender-neutral definitions of rape and sexual assault. These models reflect evolving global human rights standards and affirm the principle that legal protection from sexual violence must extend to all individuals, regardless of gender identity.
4. Justice and Fairness: A fair criminal justice system must ensure that all survivors receive equal protection and remedies. Gender-specific laws not only marginalize certain victims but also undermine the credibility and impartiality of the legal framework. A gender-neutral approach promotes procedural fairness and reinforces the rule of law.
5. Addressing Underreporting and Societal Stigma: The absence of legal recognition exacerbates underreporting by male and transgender survivors, who often face ridicule, disbelief, and institutional neglect. Gender-neutral laws would validate their experiences, encourage reporting, and challenge the stereotypes that inhibit access to justice.
Factors Contributing to the Growing Demand for Gender-Neutral Rape Laws in India
The growing advocacy for gender-neutral rape laws in India stems from evolving legal, social, and human rights perspectives. This demand reflects the need to address the limitations of a gender-specific framework and ensure protection for all victims of sexual violence, regardless of gender identity.
1. Recognition of Diverse Sexual Assault Experiences:
The traditional legal model of rape in India cannot capture all sexual violence. Increasing sensitization brought the case of male, transgender, and non-binary victims to focus who are still outside the ambit of the existing legal system.
Male Victims: Sexual violence against men, especially in custodial settings like prisons, juvenile homes, and military institutions, is increasingly documented yet remains underreported due to stigma, societal disbelief, and legal invisibility. The absence of statutory recognition perpetuates myths about male invulnerability and denies victims access to justice.
Transgender and Non-Binary Victims: Transgender individuals, particularly transgender women and non-binary persons, face heightened risks of sexual violence due to systemic discrimination. They are often excluded from the protection of existing rape laws and face institutional bias when seeking justice. Legal reforms are necessary to acknowledge their victimization and ensure equitable access to remedies.
2. Alignment with International Human Rights Standards:
India’s international commitments reinforce the need for inclusive legal protections against sexual violence.
CEDAW: While CEDAW primarily addresses women’s rights, its evolving interpretation supports protections for all individuals experiencing gender-based violence. The exclusion of male and transgender victims is increasingly viewed as inconsistent with CEDAW’s broader human rights framework.
UDHR & ICCPR: These foundational instruments emphasize equality before the law and the right to legal protection without discrimination. India’s continued use of a gender-specific definition of rape contradicts these obligations by failing to extend equal protection to all victims.
3. Comparative Legal Developments in Other Jurisdictions:
Global legal trends reflect a shift toward gender-neutral definitions of sexual offenses, reinforcing the case for similar reforms in India.
Canada: The Criminal Code in Canada uses a gender-neutral definition of sexual assault, treating all victims equally under the law.
United Kingdom: The Sexual Offences Act, 2003 provides gender-neutral provisions for several offenses, with inclusive language covering diverse forms of non-consensual acts.
Australia: States like New South Wales have adopted gender-neutral terminology in their criminal statutes, recognizing victims and perpetrators of any gender.
Legal Interpretation of Rape Laws in India
1. Judicial Endorsement of Gender-Specific Framework: Section 63 of the BNS, like its predecessor (Section 375 IPC), retains a male-perpetrator and female-victim model. The judiciary has generally supported this, citing women’s disproportionate vulnerability to sexual violence in India.
2. Recognition of Marginalized and Vulnerable Groups: Despite the gender-specific approach, courts have acknowledged the rights of other vulnerable communities- NALSA v. Union of India (2014) recognized transgender persons as a “third gender,” affirming their constitutional rights under Articles 14, 19, and 21. Navtej Singh Johar v. Union of India (2018): Decriminalized consensual same-sex relations and upheld rights to privacy, dignity, and autonomy. These decisions highlight a broader constitutional interpretation promoting inclusivity.
3. Concerns About Misuse: Courts have been cautious regarding the abuse of provisions that are gender-neutral- Deepak Gulati v. State of Haryana (2013) and K.P. Subhash v. State of Kerala (2020) cautioned against the abuse of rape law provisions and emphasized the need for procedural safeguards.
4. Gradual Shift Towards Inclusivity: While not explicitly endorsing gender-neutral rape laws, courts have encouraged legislative reforms and adopted broader interpretations focusing on the harm caused rather than the victim’s gender.
Key Judicial Precedents Supporting Inclusion
1. National Legal Services Authority (NALSA) v. Union of India, (2014): Classified transgender persons as a third gender. Held constitutional rights are available to all gender under Articles 14, 15, 16, 19, and 21. Laid the basis for comprehensive protection in criminal law.
2. Navtej Singh Johar v. Union of India, (2018): Legalized consensual same-sex relations under Section 377 IPC. Stressed dignity, privacy, and equality for all sexual minorities.
3. Deepak Gulati v. State of Haryana, (2013): Expressed concern regarding abuse of rape provisions. Emphasized the requirement to distinguish between true and false cases.
4. K.P. Subhash v. State of Kerala, (2020): Emphasized the significance of procedural safeguards to avoid misuse of protective laws. Proposed legal balance between victim protection and prevention of misuse.
Recommendations for Legal Reforms
1. Amend Section 63 of the BNS: Proposed Definition- “Rape means any non-consensual act of sexual penetration by any person against another, regardless of gender identity.” Rationale- Aligns with constitutional guarantees (Articles 14, 15, 21) and international commitments (CEDAW, UDHR).
2. Special Provisions for Transgender Individuals: Introduce specific clauses recognizing the unique vulnerabilities of transgender and non-binary persons. Refer to the NALSA judgment for ensuring compliance with constitutional protections.
3. Safeguards Against Misuse: Implement procedural checks such as mandatory evidence collection and penalties for false complaints. Emphasize due process without deterring genuine victims.
4. Training and Sensitization: Conduct gender-sensitivity training for law enforcement, judiciary, and medical professionals. Launch awareness campaigns to reduce stigma and improve reporting rates across all genders.
5. Legislative and Policy Review: Establish expert committees with diverse representation to recommend comprehensive legal reforms. Draft and introduce a bill incorporating gender-neutral sexual violence laws, with accompanying victim support mechanisms.
Conclusion
India’s existing rape laws inadequately address the realities of sexual violence experienced by male, transgender, and non-binary individuals. While concerns about misuse persist, robust procedural safeguards can address these without excluding vulnerable groups. The changing attitude of the judiciary and best international practices highlight the need to reform. A shift toward gender-neutral laws is essential to uphold justice, equality, and dignity for all victims of sexual violence in a truly inclusive legal system.
FAQS
1. What does “gender-neutral rape law” mean?
A gender-neutral rape law is legislation that delineates rape or sexual assault without presuming the gender of the perpetrator or victim. It allows any individual—without regard to gender identity—to be identified as a victim or an offender.
2. Why are India’s current rape laws considered gender-specific?
Under Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023 (earlier Section 375 IPC), rape is defined as a crime committed by a man against a woman. This excludes male, transgender, and non-binary individuals from being recognized as victims under the law.
3. What constitutional rights support the demand for gender-neutral rape laws?
Articles 14 (equality before the law), 15 (prohibition of discrimination), and 21 (right to life and personal liberty) of the Indian Constitution support legal protection for all individuals, irrespective of gender identity.
4. Which victims are typically excluded under the present legal system?
Male victims, transgender persons, and non-binary individuals are often not covered or recognized under the present gendered legal definition of rape in India.
5. What are some international examples of gender-neutral rape laws?
Countries like Canada, Australia, and the United Kingdom have adopted gender-neutral definitions of sexual assault that protect individuals of all genders equally under criminal law.
6. Are there dangers of abuse in gender-neutral rape statutes?
While concerns exist, courts like in Deepak Gulati v. State of Haryana have stressed the need for procedural safeguards to prevent misuse, rather than denying protection to certain groups.
7. How has the Indian judiciary responded to the issue of inclusivity in rape laws?
Although the judiciary has so far upheld the gendered construction, cases such as NALSA v. U.O.I and Navtej Singh Johar v. U.O.I have acknowledged the rights and dignity of the transgender and LGBTQ+ person, paving the way for inclusive legal reforms.
8. What reforms are being recommended?
Key suggestions include amending Section 63 to remove gendered language, introducing specific protections for transgender individuals, implementing misuse safeguards, and conducting training for law enforcement.
9. How would gender-neutral rape laws help in reducing underreporting?
Legal recognition of male and transgender victims would validate their experiences, reduce societal stigma, and encourage more survivors to come forward.
10. What role do international treaties play in shaping India’s legal stance?
Instruments like CEDAW, UDHR, and ICCPR advocate for non-discrimination and equal protection under the law, and India’s commitment to these treaties calls for more inclusive sexual violence laws.
