BEYOND THE BINARY: HOW THE BNS MISSED THE CHANCE TO CREATE TRULY GENDER-NEUTRAL RAPE LAWS

An Analytical Article on the Bharatiya Nyaya Sanhita, 2023, and the Need for Gender-Neutral Sexual Offence Laws in India

Author: Gopikrishna P R | Institution: ABBS SCHOOL OF LAW, Karnataka State Law University

Abstract

The Bharatiya Nyaya Sanhita (BNS), 2023, replaced the Indian Penal Code, 1860, and came into force on 1 July 2024. Yet Section 63 retains a gender-specific definition of rape: it describes rape as an offence committed by a man against a woman. This article examines the consequences of that approach for male and transgender survivors, considers the constitutional values of equality and dignity, and argues for a comprehensive framework that recognises sexual violence regardless of the gender of the victim or perpetrator. Gender neutrality should not diminish the need for strong protections addressing violence against women; rather, it should ensure that every survivor has meaningful legal protection.

Keywords: Bharatiya Nyaya Sanhita; gender neutrality; rape laws; sexual violence; transgender rights; Article 14; Article 21.

1. Introduction

The Bharatiya Nyaya Sanhita, 2023, represents a major change in India’s criminal law framework. Replacing the colonial-era Indian Penal Code, 1860, it was presented as an effort to modernise criminal law and improve the administration of justice. However, one important issue remains unresolved: the gender-specific structure of the offence of rape.

Section 63 of the BNS defines rape through specified sexual acts and circumstances involving the absence of consent or other legally recognised conditions. Its opening formulation—“A man is said to commit rape if he…”—and its references to the victim as a woman preserve a man-perpetrator/woman-victim model. As a result, adult male and transgender survivors do not fall within the victim category in this provision, and women are not recognised as perpetrators of rape under this section.

The issue is not whether women deserve special protection. They do, particularly in light of the scale and structural nature of gender-based violence. The concern is whether that protection should coexist with legal recognition for other people who experience sexual violence. A modern criminal justice system must respond to the realities of sexual assault without assuming that only one gender can be a victim or only one gender can be a perpetrator.

2. Section 63 of the BNS: A Gender-Specific Definition

Section 63 covers specified forms of penetration and oral sexual acts when committed in circumstances such as against a woman’s will, without her consent, with consent obtained through specified forms of fear or deception, when she cannot understand or communicate consent in the circumstances described by the provision, or when she is under eighteen. The section therefore places consent at the centre of the offence, but confines the statutory roles of perpetrator and victim by gender.

This is a significant limitation. Sexual violence can include forced penetration and other non-consensual sexual acts against people of any gender. By retaining a gender-specific definition, the BNS does not provide an equivalent offence of rape under

Section 63 for adult male and transgender survivors. Other offences may apply depending on the facts, but they are not necessarily equivalent in definition, recognition or punishment.

3. The Invisible Victims: Men and Transgender Persons

3.1 Male survivors

Men and boys can experience sexual violence, including coercion, forced penetration and other non-consensual sexual acts. Yet an adult man cannot be treated as the victim of rape under Section 63. This gap can reinforce harmful stereotypes that men cannot be sexually assaulted or that they are always willing participants in sexual activity. Consent is personal and must be freely given; it cannot be presumed from a person’s gender. The absence of an equivalent rape provision may also affect how survivors describe what happened, report it and seek support. A legal framework should recognise the seriousness of the violation and provide appropriate remedies without making access to justice depend on whether the survivor fits a gendered statutory category.

3.2 Transgender and non-binary survivors

The concern is especially acute for transgender and non-binary people. In National Legal Services Authority v. Union of India (2014), the Supreme Court recognised the rights of transgender persons, including the right to self-identify gender. However, Section 63 does not expressly create a gender-inclusive definition of rape.

Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, criminalises certain forms of harm and abuse against transgender persons, including physical and sexual abuse. The punishment under that provision is imprisonment for a term of six months to two years, along with a fine. It is not an equivalent substitute for the offence and punishment structure under Section

63. This difference raises questions about whether transgender survivors receive protection proportionate to the gravity of the conduct.

4. Constitutional Perspective: Articles 14 and 21

Article 14 – Equality before the law. Article 14 guarantees equality before the law and equal protection of the laws to every person. A gender-specific rape provision raises a question about the adequacy of legal protection for survivors excluded from its definition. The State may adopt special measures to address women’s historical and continuing vulnerability. However, those measures need not require leaving other survivors without a meaningful and proportionate legal remedy.

Article 21 – Life, liberty and dignity. The Supreme Court has interpreted Article 21 to protect dignity, bodily integrity, privacy and personal autonomy. Sexual violence violates these interests regardless of the victim’s gender. A law that recognises the violation of bodily autonomy only within a narrow gender framework sits uneasily with the universal character of these constitutional values.

The constitutional argument is not that Section 63 has already been declared unconstitutional. Rather, the gender-specific framework invites serious debate about equal protection and whether the wider criminal law adequately safeguards the dignity and bodily autonomy of all survivors.

5. Lessons from POCSO and Earlier Law Reform

The issue has been debated for decades. The Law Commission of India’s 172nd Report (2000), titled Review of Rape Laws, considered reforms to the law of sexual offences and recommended a broader, gender-neutral approach to sexual assault. Those recommendations were not fully reflected in the later statutory framework.

The Protection of Children from Sexual Offences Act, 2012 (POCSO) offers a useful comparison. It protects children of all genders and uses formulations that do not restrict the victim to a particular gender. Its approach demonstrates that Indian legislation can recognise children of any gender as victims of sexual offences. The question is why comparable recognition has not been extended to adult survivors in the general criminal law.

6. The Omission of Section 377 IPC and the Legal Gap

In Navtej Singh Johar v. Union of India (2018), the Supreme Court read down Section 377 of the Indian Penal Code so that consensual sexual relations between adults of the same sex were no longer criminalised. The provision continued to apply to non-consensual acts and acts involving minors. The BNS did not retain a general provision equivalent to the remaining non-consensual adult conduct covered by Section 377. Since Section 63 is gender-specific, this omission has intensified concerns about the legal treatment of non-consensual sexual acts against adult men and other people outside its definition. Depending on the facts, other provisions may apply, but they do not necessarily create an equivalent offence of rape.

7. Arguments Against Gender-Neutral Rape Laws

One concern is that gender-neutral laws could weaken the protection of women, who experience disproportionate levels of sexual violence. Another is that broader provisions could be misused through false complaints. These concerns deserve careful consideration, but they do not justify excluding entire categories of survivors.

Gender neutrality need not mean removing special protections for women. Parliament can retain aggravated offences, protective procedures and support mechanisms that respond to women’s specific vulnerabilities while also creating a gender-neutral core offence. Similarly, safeguards against false accusations should operate through fair investigation and due process, rather than through denying legal recognition to other victims. Recognising one group of survivors does not diminish the experiences or rights of another.

8. Recommendations for Reform

1. Adopt a gender-neutral core definition. Parliament should consider defining sexual assault by reference to the nature of the act and the absence of freely given consent, rather than the gender of the persons involved.

2. Preserve special protections for women. Gender-neutrality should not remove women-specific protective measures or aggravated offences justified by the realities of gender-based violence.

3. Expressly include transgender and non-binary survivors. Legislation and procedures should make clear that gender identity is no barrier to reporting, investigation, medical assistance or legal remedies.

4. Create proportionate offences and punishments. The law should distinguish levels of seriousness by considering the nature of the act, force or coercion, vulnerability, injury and other aggravating circumstances.

5. Improve survivor-sensitive procedures. Police, medical professionals and judicial officers should receive training to handle complaints from survivors of all genders with dignity, confidentiality and sensitivity.

6. Consult widely. Reform should involve women’s rights groups, LGBTQIA+ organisations, survivor advocates, child-protection bodies, legal experts and criminal justice practitioners.

9. Conclusion: Justice Must Move Beyond the Binary

The BNS was an opportunity to reconsider the foundations of India’s criminal law. By retaining a gender-specific definition of rape in Section 63, it has left important gaps in the recognition of adult male and transgender survivors. The answer is not to weaken protections for women, but to build a framework in which special protections and universal legal recognition coexist.

Bodily autonomy, dignity and the right to refuse unwanted sexual activity are not gender-specific rights. A criminal justice system committed to Articles 14 and 21 should ensure that every survivor has meaningful access to justice. The central principle is simple: justice should respond to the violation of consent, not be determined solely by the gender of the survivor.