Gender Neutrality in Indian Rape Laws

Introduction

Gender justice has always been at the heart of criminal law. Rape laws in India were designed to protect women from sexual violence, treating them as the only victims and men as the only perpetrators. While this framework arose from genuine concern for women’s safety, it created a legal vacuum for male and transgender victims. The demand for gender-neutral rape laws is therefore gaining importance, particularly after the enactment of the Bharatiya Nyay Sanhita, 2023 (BNS), which replaced the Indian Penal Code, 1860.

Position under the Indian Penal Code, 1860

The Indian Penal Code, 1860 (IPC) defined rape under Section 375 in strictly gender-specific terms: a man committing rape against a woman. This excluded men and transgender persons from the scope of victims.

The courts acknowledged this limitation but could not change the law through interpretation. For instance, in Sakshi v. Union of India (2004), the Supreme Court emphasized the need to broaden sexual assault provisions but stopped short of declaring rape laws gender-neutral. This showed the limits of legislative language and the need for statutory reform.

Provisions under the Bharatiya Nyay Sanhita, 2023

The Bharatiya Nyay Sanhita, 2023 introduced structural reforms in sexual offences but continued to follow the gender-specific approach.

• Section 63, BNS: Defines rape as an act by a man against a woman under specified conditions.
• Section 64, BNS: Provides punishment for rape, not less than 10 years, which may extend to life imprisonment.
• Section 65, BNS: Deals with gang rape.

Although the IPC has been replaced, the new provisions retain the male-perpetrator and female-victim framework, excluding male and transgender victims from statutory protection.

The Case for Gender Neutrality

1. Recognition of All Victims

   Sexual violence can affect anyone, irrespective of gender. Excluding male and transgender victims denies them the constitutional guarantee of equality under Article 14 of the Constitution.

2. International Practices

   Several countries have already moved towards gender-neutral rape laws. For instance, the United Kingdom through the Sexual Offences Act, 2003, Canada under the Criminal Code, 1985, and South Africa through the Sexual Offences Amendment Act, 2007, have implemented such provisions. Considering its democratic and progressive character, India too can take inspiration from these legal frameworks.

3. Human Rights Perspective

   The right to dignity and bodily integrity is universal. Limiting rape laws to women undermines human rights and creates unequal protection of law.

4. Changing Social Realities

   The recognition of transgender persons in NALSA v. Union of India (2014) and the growing visibility of LGBTQ+ rights highlight the need for inclusive laws.

Concerns Against Gender Neutrality

1. Fear of Misuse

   Critics argue that gender-neutral laws may open doors to false accusations against women, thereby diluting the seriousness of rape crimes.

2. Practical Difficulties

   Investigation and trial procedures may become more complex if the law extends to all genders.

3. Women’s Vulnerability

   Legislators stress that women remain the most frequent victims of rape in India. A woman-centric law ensures targeted protection for the most vulnerable group.

Judicial and Committee Recommendations

The Justice J.S. Verma Committee Report (2013), formed after the Nirbhaya case, strongly recommended gender-neutral rape provisions. However, Parliament retained the woman-centric definition, citing socio-cultural realities. Several High Courts have noted the absence of statutory remedies for male and transgender victims but have expressed helplessness in the absence of legislative change.

Comparative Perspective

• United Kingdom: Gender-neutral rape and sexual assault under the Sexual Offences Act, 2003.
• Canada: Criminal Code provisions cover all victims regardless of gender.
• South Africa: Comprehensive gender-neutral framework post-2007 reforms.

These examples show that neutrality does not reduce women’s protection; it only extends equal safeguards to all individuals.

Critical Analysis

The BNS 2023 is a landmark reform but its failure to adopt gender-neutral rape provisions is a missed opportunity. While women’s vulnerability must remain the focus, denying recognition to male and transgender victims creates inequality.

A balanced approach is needed.

• Keep strong protection for women.
• Explicitly recognize male and transgender victims in law.
• Introduce procedural safeguards to prevent misuse.

Conclusion

Gender neutrality in rape laws is not about diluting women’s protection; it is about ensuring equal justice to all. The Bharatiya Nyay Sanhita, 2023 continues with the traditional gender-specific framework, leaving India behind in terms of inclusivity. Moving toward gender-neutral provisions will align Indian criminal law with constitutional values, judicial recommendations, and global practices. The path forward requires courage from lawmakers to balance women’s vulnerability with recognition of all victims, thereby creating a criminal justice system that is truly fair and humane.