Author: Theerthana.S.B, Chennai Dr.Ambedkar Government Law College
TO THE POINT
The new Bharatiya Nyaya Sanhita brings changes to criminal law, but when it comes to rape laws, it still leaves out many voices. It defines rape only as a crime by a man against a woman, ignoring that men, trans, and queer individuals can also be victims. This makes the law unfair and one-sided. Even though fast-track courts and harsher punishments were added after the Nirbhaya case, many survivors still don’t get justice because of fear, stigma, and poor police response. If we really want justice for all, rape laws must become gender-neutral and focus more on the victim’s pain than just their gender.
ABSTRACT
The issue of sexual violence in India has long demanded urgent legal reform. Although the Bharatiya Nyaya Sanhita introduced several changes to the criminal justice system, its approach to rape laws remains deeply flawed and exclusionary. By defining rape strictly as an act committed by a man against a woman, the law ignores the lived realities of male, transgender, and queer survivors. This one-sided definition reinforces the stereotype that only women can be victims and only men can be offenders, leaving many victims without legal recognition or protection. Moreover, despite the establishment of fast-track courts and increased punishments after the 2012 Nirbhaya case, the enforcement of rape laws continues to face major roadblocks, including police inaction, social stigma, and underreporting. This paper argues that for justice to be truly inclusive, India’s rape laws must be reformed to be gender-neutral, sensitive to all survivors, and focused on the trauma endured not the gender identity of the victim. Only then can the legal system respond fairly to “a man’s pain” and the pain of all survivors, regardless of gender.
USE OF LEGAL JARGON
The Bharatiya Nyaya Sanhita, though introduced as a modern reform of criminal law, unfortunately continues to reflect a narrow, binary, and heteronormative view of sexual violence. The statutory definition of rape under BNS remains narrowly construed, characterising the offence exclusively as penile-vaginal penetration committed by a male perpetrator against a female victim. This gender-specific articulation effectively excludes male, transgender, and non-binary individuals from the ambit of statutory protection, thereby engendering a lacuna in the law. Such exclusion contravenes the constitutional guarantees enshrined under Article 14 (equality before the law) and Article 21 (right to life and personal liberty) of the Indian Constitution. The failure to adopt a gender-neutral framework undermines both the universality and inclusivity of the criminal justice system. Moreover, while procedural reforms such as fast-track courts and enhanced sentencing have been instituted post the Nirbhaya jurisprudence, the implementation remains mired in systemic apathy, victim-blaming attitudes, and institutional inertia. The continued reliance on a binary legal framework in addressing sexual offences not only impairs access to justice but also reflects a judicial reluctance to engage with evolving notions of gender identity and bodily autonomy. Therefore, substantive legal reform aimed at reconceptualising the definition of rape in a gender-neutral and trauma-informed manner is imperative for ensuring equal protection under the law for all survivors of sexual violence.
THE PROOF
The gender-specific definition of rape under the Bharatiya Nyaya Sanhita, which limits the offence to penile-vaginal penetration committed by a man against a woman, creates a substantial gap in legal protection for male, transgender, and non-binary survivors. This exclusion violates the constitutional mandate of Article 14, which guarantees equality before the law, and Article 21, which secures the right to life and personal liberty. The Justice Verma Committee Report (2013), formed after the Nirbhaya incident, had specifically recommended a gender-neutral definition of sexual assault, recognising that sexual violence can affect all individuals, regardless of gender. However, this recommendation was not fully incorporated in either the Criminal Law (Amendment) Act, 2013 or the BNS, 2023. International legal standards, such as those found in the Yogyakarta Principles and South Africa’s Criminal Law (Sexual Offences and Related Matters) Amendment Act, have adopted gender-neutral language, showing a progressive move toward inclusivity. In Navtej Singh Johar v. Union of India (2018), the Supreme Court of India affirmed that constitutional morality must prevail over societal norms and recognised sexual autonomy and identity beyond binary genders. Yet, despite such judicial and expert recommendations, the BNS continues to follow a binary, heteronormative structure, denying justice to many. This evidences an urgent need for legislative reform to align rape laws with both constitutional principles and contemporary human rights standards.
CASE LAWS
1. Navtej Singh Johar v. Union of India (2018)
In this landmark case, the Supreme Court decriminalised consensual same-sex relations by reading down Section 377 of the IPC. The Court strongly emphasized that dignity, privacy, autonomy, and identity are central to the Constitution. It recognised that LGBTQ+ individuals are entitled to the same rights and protections as any other citizen. This case is important for the issue of rape law reform because it clearly shows that the law must move beyond binary genders. However, the current definition of rape under the BNS still excludes male, transgender, and queer survivors, which goes against the inclusive spirit of this judgment.
2. National Legal Services Authority (NALSA) v. Union of India (2014)
The Supreme Court in NALSA gave legal recognition to transgender persons as the “third gender” and upheld their fundamental rights under Articles 14, 15, 19, and 21. The Court stressed that gender identity is part of personal dignity and self-expression. While this was a progressive step, Indian rape laws, including the BNS, continue to define the offence in a way that only protects cisgender women, ignoring the legal recognition granted to other gender identities. This creates a contradiction between constitutional law and criminal law.
3.Anuj Garg v. Hotel Association of India (2008)
In this case, the Supreme Court struck down a law that banned women from working in bars, calling it discriminatory and based on outdated gender roles. The Court held that such paternalistic laws do more harm than good by reinforcing stereotypes. This judgment is relevant to rape law reform because the current legal definition of rape also relies on old assumptions—that only women are vulnerable and only men are aggressors. Like in Anuj Garg, these stereotypes need to be challenged through inclusive legislation.
4. Suresh Kumar Koushal v. Naz Foundation (2013) (Overruled later)
In this case, the Supreme Court upheld Section 377 and rejected the rights of LGBTQ+ individuals. It was widely criticised for being regressive and was later overruled by the Navtej Singh Johar judgment. Still, it is important in the history of how Indian law has treated non-binary identities. The fact that rape laws still follow a binary gender structure today shows that the same outdated mindset from Koushal still lingers in some parts of the legal system, even after progressive changes elsewhere.
5. Justice Verma Committee Report (2013)
Though not a case, this committee report is crucial. It was formed after the brutal Nirbhaya case to suggest reforms to criminal law. The committee clearly recommended that sexual offences, including rape, should be defined in a gender-neutral way. It claimed that sexual violence can affect individuals of any gender.Sadly, this recommendation was never fully adopted in the Criminal Law (Amendment) Act, 2013 or in the BNS, 2023. Ignoring this guidance shows a missed opportunity to make the law inclusive and just.
CONCLUSION
The existing framework of rape laws under the Bharatiya Nyaya Sanhita reflects a narrow, outdated, and gender-specific understanding of sexual violence. By continuing to define rape solely as a crime by a man against a woman, the law fails to acknowledge the lived experiences of male, transgender, and non-binary survivors. This not only creates a legal vacuum for many victims but also contradicts constitutional values of equality, dignity, and personal liberty under Articles 14 and 21. Despite clear recommendations from the Justice Verma Committee and progressive judgments like NALSA and Navtej Singh Johar, Indian rape laws remain rigid and exclusionary. To move towards a truly just and inclusive legal system, it is essential to adopt gender neutral definitions of sexual offences and ensure that every survivor, regardless of gender identity, has equal access to legal protection and justice.
FAQs
1.How is the offence of rape currently defined under the Bharatiya Nyaya Sanhita (BNS)?
The BNS defines rape as a sexual offence committed by a man against a woman, specifically involving non-consensual penetration.The definition does not acknowledge male, transgender, or non-binary individuals as potential victims.
2. Has any official body recommended gender-neutral rape laws in India?
Yes. The Justice Verma Committee Report (2013) clearly recommended that rape and sexual assault laws should be gender-neutral in terms of both the victim and the perpetrator. However, this recommendation was not fully implemented.
3.Do other countries have gender-neutral rape laws?
Yes. Countries like South Africa, Canada, and parts of the United States have adopted gender-neutral language in their laws to ensure that all survivors of sexual violence are protected.
4. Are there any Supreme Court judgments supporting gender inclusion in laws?
Landmark judgments such as NALSA CASE and Navtej Singh Johar CASE affirmed the rights of transgender and LGBTQ+ communities, emphasizing the importance of dignity and equality irrespective of one’s gender identity.
5. What constitutional rights are violated by not having gender-neutral rape laws?
The current laws may violate Article 14 (Right to Equality) and Article 21 (Right to Life and Personal Liberty), as they deny equal legal protection to all victims based on their gender.
