Abstract
The Bharatiya Nyaya Sanhita, 2023 (BNS) repealed Section 377 of Indian Penal Code, 1860 (IPC) without introducing any equivalent gender neutral offence. Concurrently, Section 63 of the BNS, 2023 maintains a strictly gender specific framework which defines rape exclusively as an offence committed by a man against a women. This creates a legal vacuum in criminal protection for male and transgender who are survivors of non – consensual sexual assault. Legal experts have widely criticized this gap, but less attention has been directed towards developing a precise and workable legislative response. This article critically evaluates the gendered framework of Section 63 of BNS and proposes a specific gender neutral amendment. This redraft aims to extend core protection to all victims while retaining enhanced safeguards for women and children where constitutionally and legislatively justified. It further evaluates the proposed text against various issues like over criminalization, evidentiary complexity and potential misuse. It further evaluates these factors by drawing lessons from India’s previous attempt towards gender neutral rape laws through the Criminal Law (Amendment) Ordinance, 2013. The article contends that by introducing gender neutral protection need not diminish the existing legal safeguards. Instead, a carefully structured drafting can address the post – IPC Section 377 statutory gap without disrupting the overall structure of India’s sexual offence framework.
Keywords – Bharatiya Nyaya Sanhita, 2023; BNS Section 63; Indian Penal Code, 1860; IPC Section 377; gender neutral offence; male victims; transgender victims.
1. Introduction
1.1 Background
Traditionally, Section 377 of the IPC, 1860 criminalised “carnal intercourse against the order of nature”[1]. Following Navtej Singh Johar and Ors. v. Union of India, its operation survived in relation to non – consensual sexual acts, acts involving minors and bestiality, while consensual same sex relation was decriminalized[2].
With the Bharatiya Nyaya Sanhita, 2023 (BNS) coming into force on 1 July, 2024[3], the Parliament omitted the IPC Section 377[4] completely without introducing an equivalent gender neutral provision addressing non – consensual sexual violence against male victims. This omission creates a major legislative vacuum, as Section 63 of BNS defines rape through a completely gender specific framework which treats women as the victim and man as the perpetrator[5]. In the Parliamentary Standing Committee Report 2023, it was recommended that the government to include section 377 of IPC in the proposed law[6]. The complete omission of the provision raises the question whether BNS adequately protects persons who fall outside the gendered framework of BNS Section 63[7].
The issue carries a notable legislative history. Following the Justice J.S Verma Committee Report of 2013[8], the Criminal Law (Amendment) Ordinance, 2013 temporarily introduced a gender neutral definition of rape[9]. However, when the Ordinance was replaced by the Criminal Law (Amendment) Act, 2013[10] the Parliament again restored the female victim framework out of fear that the gender neutral laws could lead to false cases against women and will eventually weaken their legal safeguard. These concerns remain relevant to any contemporary proposal for gender neutral reform.
1.2 Research Questions
1.2.1 What would be a legislatively viable gender neutral redraft of Section 63 of BNS look like, capable of extending criminal law protection to male and transgender victims of non – consensual sexual acts?
1.2.2 How could such a redraft be structured so that it can anticipate and address the specific objections especially regarding potential misuse against women that led to the rejection of India’s earlier attempt at gender neutral rape law in 2013?
1.3 Objective
The article aims to identify the existing statutory gap arising from the omission of IPC Section 377 and also examine the gender specific framework of Section 63 of BNS. This article further seeks to develop and justify a concrete, gender neutral redraft of Section 63 of BNs that will extent protection to male and transgender victims while preserving enhanced safeguards for women and children and addressing principal objections that affected the 2013 gender neutral rape reform.
1.4 Methodology
This article adopts a doctrinal as well as analytical methodology in examining the BNS, the former IPC, relevant legislative materials and judicial decisions to identify the existing statutory gap and critically assess the present framework. The findings are then used to develop and evaluate a specific gender neutral redraft of Section 63 of BNS.
2.Legal Provisions and Concepts
Section 63 of BNS[11] defines rape using terms functionally identical to Section 375 of IPC[12], preserving a gender specific model where only a man is a perpetrator and a woman is a victim. Section 64 of BNS to Section 71 of BNS prescribes punishment and aggravated form of rape within the same framework[13]. However, BNS fails to reproduce the residual, gender neutral protective function that was previously performed by Section 377 of IPC in respect of non – consensual sexual acts against men and transgender persons following the ruling Navtej Singh Johar v. Union of India[14]. The legislative timeline of 2013 reforms are therefore significant to any contemporary proposal for reform. The Criminal Law (Amendment) Ordinance, 2013[15] temporarily amended Sections 375 to adopt a gender neutral approach following the recommendations of the Justice J.S Verma Committee[16]. However, women’s rights groups objected that a gender neutral offenders framework ignored the empirical reality that sexual violences is overwhelmingly committed by men against women. They also warned that such neutrality could facilitate retaliatory or false complaints against women. When the Ordinance was replaced by the Criminal Law (Amendment) Act, 2013, the Parliament consequently restored the female victim and male perpetrator structure. This same approach is retained in the BNS. This new proposal therefore seeks to address the exclusion of male and transgender victims without reproducing the broader perpetrator side formulation that contributed to the failure of the 2013 approach.
The real world consequences of this statutory gap are that the BNS completely lacks a proper dedicated offense to address non consensual sexual violence against male and transgender victims. In the absence of such a provision, the available legal remedies may have to rely on general offences such as causing hurt or criminal intimidation, which are not specifically designed to recognise the distinct nature, gravity and evidentiary characteristics of sexual violence. This fragmented framework highlights the practical consequences of omitting the protective function which was previously associated with Section 377 of IPC. In the Parliamentary Standing Committee Report 2023, it was recommended that the government to include section 377 of IPC in the proposed law in some form while removing its application to consensual conduct[17]. Any proposed redraft must therefore not only address the concerns that contributed to the rejection of gender neutral rape legislation in 2013, but also the present gap in the enforcement that leaves certain victims without a dedicated sexual offence provision.
3. Case Analysis
The judiciary has consistently maintained that expanding the definition of rape or establishing a new sexual offense is primarily a legislative duty. While hearing petitions against Section 63 of BNS, the Delhi High Court made it clear that it cannot judicially engineer a crime to replace the omitted Section 377 IPC when Parliament chose not to enact one. Furthermore, ongoing legal challenges regarding transgender victims and the constitutional validity of Sexual 63 underscores the clear structural limits of relying on judicial interpretation for a completely remedy.
At the same time, National Legal Services Authority v. Union of India establishes the constitutional rights of transgender persons to equality, dignity and equal protection[18]. Understanding these together these developments support a legislative solution that is while constitutional principles require protection against discrimination, the creation of a specific gender neutral sexual offence requires clear statutory intervention.
4. Proposed Redraft of Section 63 of BNS
Drawing from the precedent analysis, this article proposes the following redraft of Section 63 of BNS by retaining the seven existing statutory circumstances of non – consent which is set out in the current provision, but replacing gender specific language with gender neutral terms:
“Section 63 (Proposed) A person is said to commit “rape” if that person –
(a) penetrates the vagina, urethra, mouth or anus of another person, to any extent, with their penis, or makes such other person do so with them or any other person; or
(b) inserts, to an extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of another person, or makes such other person to do so with them or any other person; or
(c) manipulates any part of the body of another person so as to cause penetration of the vagina, urethra, anus or any part of the body of such other person, or makes such other person do so with them or any other person; or
(d) applies their mouth to the vagina, urethra, anus or penis of another person, or makes such other person do so with them or any other person,
under the circumstances falling under any of the following seven descriptions :–
(i) against the person’s will;
(ii) without the person’s consent;
(iii) with her consent, when her consent has been obtained by putting her or any other person to whom she is interested, in fear of death or of hurt;
(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married;
(v) with the person’s consent when, at the time of giving consent, by reason of unsoundness of mind or intoxication or the administration by that person personally or through another of any stupefying or unwholesome substance, the person is unable to understand the nature and consequences of that to which that person gives consent;
(vi) with or without her consent, when she is under eighteen years of age;
(vii) when the person is unable to communicate consent.
Explanation 1. “ Person” for the purpose of this section, includes any man, women, or transgender or third gender individual, as either the victim or perpetrator of the offence.
Explanation 2. Nothing in this section shall be construed to displace or diminish the enhanced minimum sentences, aggrieved categories, and procedural protections presently available to women and child victims under Section 64 to 71 and elsewhere in this Sanhita, which shall continue to apply in conditions and not in substitution of, the general offence defined above.”
This change necessitates a corresponding amendment to Section 64 of BNS that is punishment for rape by substituting its female specific wording with a direct reference to “ a victim under Section 63”, while leaving its existing punishment of rigorous imprisonment of not less than a term of ten years and which is extendable to imprisonment for life, entirely unchanged. Because the proposed redraft strictly alters victim recognition without adjusting sentencing severity, precisely so that the reform cannot be characterized as either lenient towards offenders or as diluting the punishment regime that currently applies to offences against women.
The two explanations serve as the direct answer to the 2013 objections. Explanation 1 resolves the victim side exclusion by extending coverage to male and transgender individuals without disrupting the core statutory definition. Explanation 2 directly addresses the perpetrator side objection raised by women’s group in 2013. Rather than treating gender neutrality as a reason to lower protection for women, to preserves every existing enhanced sentencing procedural safeguard for women and children as an additional layer, so that gender neutrality operates only to close the gap and not to weaken any existing safeguards.
5.Findings and Discussions
The proposed redraft addresses the two principal objections which a very likely to resurface in any legislative debate. First, to address the 2013 concern that a gender neutral offender definition could be used as a weapon against women. Explanation 2 preserves the existing women specific protection rather than replacing them which creates a tired framework where baseline gender neutral rules work alongside enhanced safeguards for women and children. The second concern is related to the possible conflation of gender neutral sexual offence reform with the constitutional question of consensual same sex relationships addressed in Navtej Singh Johar v Union of India. The proposed formulation avoids reopening that issue by defining the offence exclusively through the absence of consent and the prohibited sexual act, without making the sexual orientation relevant to criminal liability.
Institutional feasibility is another crucial factor. In the recent observations by the Delhi High Court signals a clear reluctance to judicially manufacture a new offense by reading words into Section 63 of BNS where Parliament has not enacted corresponding language. The presence of ongoing constitutional challenges further highlights why we cannot solely rely on the courts to fix this statutory omission. A fully drafted legislative amendment could therefore provide Parliament with a concrete alternative for consideration and demonstrate that extending the protection to victims who are presently excluded need not require an entirely new statutory framework. The proposal accordingly seeks to convert an identical legal gap into a specific legislative question capable of parliamentary consideration.
The proposal nevertheless carries limitations. Retaining the Explanation 2 as a permanent safeguard could result in a two tier framework in which certain protections continue to depend upon the victim’s gender. Therefore, future reforms may need to reconsider whether enhanced protection should be based primarily on demonstrable vulnerability rather than the victim category. Further, the substantive reform would need to be accompanied by corresponding procedural and evidentiary amendments. Rules concerning presumptions, examinations of victims and other trial safeguards would require careful reconsideration to ensure that gender neutral substantive protection operates effectively in practice.
Finally, the current enforcement gap reinforces the argument for targeted statutory reform. When serious forced sexual acts against male or transgender survivors cannot be prosecuted properly under the current rape laws, falling back on generic offences fails to capture the unique trauma of the crime. Rather than aiming for a massive expansion of the criminal law, the proposed amendment provides an exact legal definition and remedy for the conduct the current framework ignores. By positioning this as a precise fix rather than a total restructuring, the proposal successfully balances equal protection with the safety measures that shape the 2013 policy debates.
7. Conclusion
The repeal of Section 377 of IPC without a replacement has created a significant gap in protection for male and transgender victims. This article proposes a targeted gender neutral redraft of Section 63 BNS that extends protection while retaining the enhanced safeguards for women and children. By addressing the concerns that defeated the 2013 approach, the proposal offers a practical legislative solution. Since courts cannot create a new offence in the absence of legislative authority, closing this gap ultimately remains the responsibility of Parliament.
Reference
[1] India. Indian Penal Code, 1860. Act No. 45 of 1860, s 377. Government of India, India Code
[2] Navtej Singh Johar and Ors. vs Union of India. Supreme Court Cases, vol. 10, 2018, p.1, paras. 645.1, 645.3.
[3] India. Bharatiya Nyaya Sanhita, 2023. Act No. 45 of 2023. Government of India, India Code, 2023
[4] India. Indian Penal Code, 1860. Act No. 45 of 1860, s 377. Government of India, India Code
[5] India. Bharatiya Nyaya Sanhita, 2023. Act No. 45 of 2023, s 63. Government of India, India Code, 2023
[6] India. Parliament. Rajya Sabha. Department Related Parliamentary Standing Committee on Home Affairs. Two Hundred Forty Sixth Report on the Bharatiya Nyaya Sanhita, 2023. Report No. 246, Rajya Sabha Secretariat, Nov. 2023, para. 1.17
[7] India. Bharatiya Nyaya Sanhita, 2023. Act No. 45 of 2023, s 63. Government of India, India Code, 2023
[8] Verma, J. S., Leila Seth, and Gopal Subramanium. Report of the Committee on Amendments to Criminal Law. Government of India, 23 Jan. 2013, Appendix IV, ch. 1, point 7, pp. 439–40.
[9] India. Criminal Law (Amendment) Ordinance, 2013. Ordinance No. 3 of 2013, point 8, § 375, pp. 6–8, 3 Feb. 2013.
[10] India. Criminal Law (Amendment) Act, 2013. Act No. 13 of 2013, 2 Apr. 2013.
[11] India. Bharatiya Nyaya Sanhita, 2023. Act No. 45 of 2023, s 63. Government of India, India Code, 2023
[12] India. Indian Penal Code, 1860. Act No. 45 of 1860, s 375. Government of India, India Code
[13] India. Bharatiya Nyaya Sanhita, 2023. Act No. 45 of 2023, s. 64, 65, 66, 67, 68, 69, 70, 71. Government of India, India Code, 2023
[14] Navtej Singh Johar and Ors. vs Union of India. Supreme Court Cases, vol. 10, 2018, p.1, paras. 645.1, 645.3
[15] India. Criminal Law (Amendment) Ordinance, 2013. Ordinance No. 3 of 2013, point 8, § 375, pp. 6–8, 3 Feb. 2013
[16] Verma, J. S., Leila Seth, and Gopal Subramanium. Report of the Committee on Amendments to Criminal Law. Government of India, 23 Jan. 2013, Appendix IV, ch. 1, point 7, pp. 439–40.
[17] India. Parliament. Rajya Sabha. Department Related Parliamentary Standing Committee on Home Affairs. Two Hundred Forty Sixth Report on the Bharatiya Nyaya Sanhita, 2023. Report No. 246, Rajya Sabha Secretariat, Nov. 2023, para. 1.17
[18] National Legal Services Authority v. Union of India and Others. Supreme Court Cases, vol. 5, 2014, p. 438, para. 135.1.
[19] India. Transgender Persons (Protection of Rights) Act, 2019. Act No. 40 of 2019, 5 Dec. 2019.