Rethinking India's Gender-Specific Rape Law

INTRODUCTION

Who counts as a rape survivor under Indian criminal law? Under the Bharatiya Nyaya Sanhita, 2023, the answer depends not merely on whether a person has endured non-consensual penetrative sexual violence, but on whether the law recognises them as capable of being its victim. Adult male and gender-diverse survivors remain excluded from the offence of rape, creating a significant gap in legal protection.

The Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the Indian Penal Code, 1860 (IPC), on 1 July 2024, was introduced as a major reform in Indian criminal law. However, by retaining a gender-specific definition of rape under Section 63.1 The BNS perpetuates the colonial understanding of sexual violence as male as a structural perpetrator and only women as a structural victim. This statutory gap was highlighted by the recent Kurukshetra incident in Haryana, where an adult male survivor of forced sodomy could seek recourse only under general provisions relating to hurt following the repeal of Section 377 IPC.2

This blog examines whether the gender-specific definition of rape under Section 63 of the Bharatiya Nyaya Sanhita, 2023, creates a constitutional gap by excluding adult male and gender-diverse survivors of sexual violence.

THE DE-COLONIAL PARADOX: HOW THE BNS INSTITUTIONALISED THE GENDER GAP IN SEXUAL VIOLENCE

The legal predicament witnessed in the Kurukshetra incident was not an isolated prosecutorial anomaly. It was the direct consequence of the legislative transition from the Indian Penal Code to the Bharatiya Nyaya Sanhita, which repealed Section 377 without creating a gender-neutral substitute for adult survivors of non-consensual penetrative sexual assault. To understand the current legal crisis, one must explore the evolution from the Indian Penal Code, 1860, to the newly enacted Bharatiya Nyaya Sanhita, 2023. Under the old regime, Section 375 of the IPC defined rape using explicitly gender-specific terms.

"Section 375. Rape. A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the following seven descriptions..."3

Section 375 recognised only women as victims of rape. Adult male survivors, transgender persons, and intersex individuals were therefore forced to rely on Section 377 IPC against non- consensual penetrative sexual violence.

"Section 377. Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."4

The Supreme Court in Navtej Singh Johar v. Union of India struck down Section 377 for consensual same-sex relationships. The section was retained for non-consensual activities and those involving minors and bestiality.5 Before the BNS, non-consensual penetrative assaults against adult males remained punishable under Section 377. However, when BNS repealed Section 377, it did not replace it with a gender-neutral law.

Notwithstanding warnings from the Parliamentary Standing Committee on Home Affairs that the total repeal of Section 377 IPC would result in adult male victims being stripped of statutory protection, the legislators maintained a gender-specific definition of rape under Section 63. Highlighting this upcoming statutory vacuum, the Committee explicitly noted:

"The Committee thinks that the offence of rape under IPC was gender-specific... and since Section 377 is being repealed, there is a need to protect adult males, transgender persons, and non-binary individuals from non-consensual sexual acts. Total omission of protections for these groups will leave a substantial legal vacuum."6 "Section 63. Rape. (1) A man is said to commit rape who, (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of a woman or makes her to do so with him or any other person; or... under any of the seven descriptions following..."7

This leads to a significant disparity between statutory laws because the identical conduct of a non-consensual penetrative assault is differentiated according to the survivor’s gender. While sexual assault committed against females will be addressed under the strict laws of Section 63, the same act of violence against males and those who belong to the gender-diverse community shall be considered under other general laws related to bodily harm.

RETHINKING CLASS ARBITRARINESS: WHY GENDER-SPECIFIC EXCLUSIONS FAIL THE EQUAL PROTECTION STANDARD

Article 14 of the Indian Constitution permits legislative classification based on an intelligible differentia with a rational nexus to the statute's objective.8 The objective of rape law is to protect the bodily integrity, dignity, and autonomy of the individual against non-consensual penetration. Although women are indeed more likely to suffer sexual assaults, and there are 29,670 rape cases reported against women alone in 2023 by the NCRB9sexual assault is not restricted to any one gender. Because the harm caused by non-consensual penetration does not depend on the victim's gender, the classification lacks a rational nexus. The Supreme Court has repeatedly cautioned against classifications that rest on stereotypes rather than constitutionally relevant differences. In Anuj Garg v. Hotel Association of India10, the Court rejected paternalistic assumptions about women and held that legislation cannot be sustained merely because it claims to protect a class while in fact reinforcing gendered stereotypes. Similarly, in Shayara Bano v. Union of India 11, the Court recognised that a law may be struck down if it is manifestly arbitrary. Read together, these cases support the argument that a rape law which excludes male and gender-diverse survivors is vulnerable to constitutional challenge. The same was confirmed in Joseph Shine v. Union of India 12, which held that statutory classification must not enforce stereotypes.

BEYOND PROTECTIVE DISCRIMINATION: BALANCING SPECIAL PROVISIONS FOR WOMEN WITH UNIVERSAL REDRESS

Under Article 15(3), the state can make "special provisions for women and children"13. In penal law, this allows for more stringent punishments, trial proceedings that favour the victim, and additional safeguards to ensure equality. However, the purpose of such discriminatory protection is to provide marginalised communities with access to protection and rights, rather than to exclude other people who suffer the same injury from enjoying those benefits. While the constitutional violation is the total exclusion of adult men, transgender, and non-binary individuals as survivors of rape, the inclusion of these individuals does not diminish any of the protections provided to women in the statute. It will not be difficult for the legislature to create gender-neutral offences alongside gender-aggravated offences.

DE-LINKING TRAUMA FROM GENDER: THE CONSTITUTIONAL MANDATE FOR INCLUSIVE BODILY AUTONOMY

The dualism between the male and female genders, as defined under Section 63 of BNS, only adds fuel to the constitutional crisis over Article 2114, which guarantees the rights to dignity, privacy, and total body autonomy. This has been stated in Justice K.S. Puttaswamy v. Union of India, where bodily autonomy is an essential component of personal freedom.15 The Navtej Singh Johar case reiterated that body autonomy is a fundamental right for all humans, irrespective of gender or sexual orientation.16 Through its restriction of the statutory definition of rape to females alone, the legislature creates a problematic hierarchy of constitutional protection. Any act of sexual penetration committed against anyone’s will causes the same severe distress irrespective of the gender of the individual. However, the binary nature of such an understanding excludes adult males, transgender males, and non-binary persons from sexual assault remedies. It makes their trauma fall under the category of physical battery. The statutory definition of rape has to be released from such colonial shackles. An expansion of the definition would not undermine the specific protections needed for women. Still, it would fulfil the directive of NALSA v. Union of India to make the right to bodily autonomy a universal right.17 The right to bodily autonomy under Article 21 has been strongly affirmed in Suchita Srivastava v. Chandigarh Administration 18 and later in X v. Principal Secretary, Health and Family Welfare Department. 19 These decisions confirm that control over one’s body is central to dignity and personal liberty. On that reasoning, the constitutional injury caused by non- consensual penetration does not vary according to the survivor’s gender, making a gender- exclusive rape definition difficult to justify.

DOMESTIC PRECEDENTS FOR NEUTRALITY: THE POCSO FRAMEWORK AND THE VERMA COMMITTEE IMPERATIVE

It must be noted here that India currently takes this very approach through the Protection of Children from Sexual Offences Act, 2012 (POCSO), which makes it clear that every child is protected from penetrative sexual assault regardless of the child’s sex or gender.20 This indicates the feasibility of gender-neutral legislation in the Indian context. A similar reform impulse can be traced to Sakshi v. Union of India. 21, where the challenge to the narrow scope of Section 375 of the IPC highlighted the inadequacy of existing rape law and led the Law Commission, in its 172nd Report22, to recommend widening the offence and replacing the term “rape” with “sexual assault”. This history shows that gender-neutral reform is not conceptually foreign to Indian criminal law.

The Justice Verma Committee Report (2013) similarly advocated a more inclusive framework for sexual offences by recognising that sexual assault against men and transgender persons is a legal reality requiring statutory recognition. The Committee urged a shift away from the traditional view of sexual offences rooted in notions of female modesty or chastity, instead emphasising violations of bodily integrity, autonomy and dignity. 23

To understand why the BNS Section 63 fails, one must look closely at the specific socio-legal mechanics detailed by the Verma Committee regarding how sexual crimes operate:

• Recognition of Diverse Victims: The Justice Verma Committee proceeded on the understanding that rape is an expression of power and domination rather than merely sexual desire, emphasising that sexual violence violates bodily autonomy and human dignity.24 Because power asymmetries exist across all spectrums of human interaction, the reality of sexual assault inevitably extends beyond binary classifications. The Report noted: "Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same."25 Although the Committee retained the understanding of rape as a manifestation of gendered power, it sought to ensure that victims were not excluded from legal protection solely because of their sex or gender identity.

• Gender Neutrality with Context-Specific Protection: While recommending recognition of male and transgender victims, the Committee did not disregard the disproportionate impact of sexual violence on women. It viewed rape as an expression of structural gender inequality. It therefore continued to recommend enhanced legal protection for offences that predominantly target women, including custodial sexual violence, acid attacks, and other gender-based offences. The Committee's recommendations sought to balance inclusive recognition of victims with safeguards that address women's particular social vulnerability.

GLOBAL SHIFTS IN CRIMINAL LAW: CROSS-BORDER FRAMEWORKS FOR GENDER-NEUTRAL SEXUAL OFFENCES

Legal developments through comparative analysis show an increasing tendency toward developing gender-neutral laws relating to sexual offences because the damage caused by a non-consensual penetrative sexual offence does not depend on the victim's gender or sexual orientation.

• Bifurcated Approach in the UK: Under Section 1 of the Sexual Offences Act 200326, the crime of rape continues to be anatomically based in that it requires penile penetration, thereby allowing only a male to be guilty of the offence. Nevertheless, the legislation is gender neutral in relation to the victim, since it protects "another person," which allows for women, men, transgender people, and non-binary people to be classified as victims of rape should the elements of the offence be proven. For the purposes of protecting people from non- consensual acts of penetration not covered under Section 1, Section 227 defines the offence of assault by penetration, which can be committed by anyone, regardless of gender, through any bodily part or even an object. It must be emphasised that the maximum sentence is the same as that for rape: life imprisonment.

• The United States’ Conduct-Centric Model of Sexual Assault: At the federal level, the United States has adopted a gender-neutral approach under 18 U.S.C. §§ 2241-224628. Aggravated sexual abuse and sexual abuse involve criminal acts that depend on the nature of the conduct, such as forcing someone else to perform a sexual act using force, threat or coercion, regardless of the sex or gender of the perpetrator or victim. In this way, federal laws are free from any gender discrimination and equally protect sexual assault victims.

• Equality-Based Approach to Sexual Violence in South Africa: The Republic of South Africa is one of the countries that uses one of the broadest gender-neutral definitions of rape, as stated in Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. "Any person ('A') who unlawfully and intentionally commits an act of sexual penetration with a complainant ('B'), without the consent of B, is guilty of the offence of rape." 29 Neither the rapist nor the victim is specified according to gender, and sexual penetration is understood as penetration using any body part, any genital organ, or an object. By making the basis of liability only consent or the lack thereof and not the gender of those concerned, this approach ensures equal rights for both men and women, transgender, and non-binary people.

CONCLUSION

The incident at Kurukshetra illustrated that the impact of gender-based legislation on the crime of rape is no longer conceptual. In the wake of the abolition of Section 377 of the IPC, it became evident through the inability of an adult man to refer to the offence of rape as a survivor of a sexual assault that there was a substantial gap in the Bharatiya Nyaya Sanhita, 2023. The case made it clear that the law does not make a distinction based on the form of sexual violence inflicted upon the survivor, but rather based on the status of the survivor. Therefore, the constitutional issue regarding Section 63 is not the fact that the law protects women who still bear an unfair burden of sexual violence, but the fact that adult males and gender-diverse individuals are excluded from the protection provided by the law. The gender-neutral nature of the POCSO Act, suggestions from the Justice Verma committee, and examples from jurisdictions like the United Kingdom, South Africa, and Nepal make it evident that inclusion of all survivors of sexual offences within the ambit of legal protection is possible as well as constitutionally sound. To live up to its promise of being a modern criminal code, the concept of rape in the BNS has to go beyond binaries and include all survivors of penetrative sexual violence.

1 The Bharatiya Nyaya Sanhita, No. 45 of 2023, INDIA CODE (2023), § 63.

2 Sushil Manav, Haryana Cops Accused of Custodial Sodomy but FIR Only for Simple Hurt: The BNS Blind Spot,THE PRINT (June 21, 2026, 12:55 PM IST).

3 The Indian Penal Code, No. 45 of 1860, INDIA CODE (1860), § 375.

4 The Indian Penal Code, No. 45 of 1860, INDIA CODE (1860), § 377.

5 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

6 DEP'T-RELATED PARLIAMENTARY STANDING COMM. ON HOME AFFAIRS, 246TH REPORT ON THE BHARATIYA NYAYA SANHITA, 2023, at 44 (2023).

7 Bharatiya Nyaya Sanhita, § 63.

8 INDIA CONST. art. 14.

9 NAT'L CRIME RECORDS BUREAU, MINISTRY OF HOME AFFAIRS, CRIME IN INDIA 2023, at 112 (2024).

10 Anuj Garg v. Hotel Ass’n of India, (2008) 3 S.C.C. 1.

11 Shayara Bano v. Union of India, (2017) 9 S.C.C. 1.

12 Joseph Shine v. Union of India, (2019) 3 SCC 39.

13 INDIA CONST. art. 15, cl. (3).

14 Id. art. 21.

15 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

16 Navtej Singh Johar, (2018) 10 SCC 1.

17 National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

18 Suchita Srivastava v. Chandigarh Admin., (2009) 9 S.C.C. 1.

19 X v. Principal Sec’y, Health & Family Welfare Dep’t, (2023) 9 S.C.C. 433.

20 The Protection of Children from Sexual Offences Act, No. 32 of 2012, INDIA CODE (2012),§3.

21 Sakshi v. Union of India, (2004) 5 S.C.C. 518.

22 LAW COMM'N OF INDIA, 172ND REPORT ON REVIEW OF LAWS RELATING TO OFFENCES AGAINST WOMEN (2000).

23 JUSTICE VERMA COMM., REPORT OF THE COMMITTEE ON AMENDMENTS TO CRIMINAL LAW ch. 4 (2013).

24 Id. at 70.

25 Id. at 416.

26 Sexual Offences Act 2003, c. 42, § 1 (UK).

27 Sexual Offences Act 2003, c. 42, § 2 (UK).

28 18 U.S.C. §§ 2241–2246 (2018).

29 Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007, § 3 (South Africa).