Despite the progress in making India's criminal law gender-neutral, the Bharatiya Nyaya Sanhita, 2023 fails to incorporate a lot of important recent developments, writes Ashima Mandla.
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The Bharatiya Nyaya Sanhita, 2023 (BNS) has been enforced in the country with effect from July 1, 2024, thereby replacing the Indian Penal Code, 1860 (IPC).
An important question remains: Has the BNS cured the lacunae of the lack of gender-neutral provisions for rape and other sexual offences in the IPC?
Under the IPC, the definition of "gender" under Section 8 and "man" and "woman" under Section 10 had been given restricted meanings to not include transgender persons.
However, the BNS has widened the definition of "gender" under Section 10 to include transgender persons. The same is a significant step towards civil rights but does not afford any protection from sexual offences.
Section 63 of the BNS, defining "rape" is verbatim to Section 375 of the IPC, 1860 [as amended by the Criminal Law (Amendment) Act, 2013] wherein only a "man" is a perpetrator and a "woman" is a victim.
“Has the BNS cured the lacunae of the lack of gender-neutral provisions for rape and other sexual offences in the IPC?
The offence of voyeurism has been expanded under Section 77 of the BNS wherein the victim still is a "woman" but the perpetrator has been made gender neutral from a "man" under Section 354C of the IPC to "whoever" under Section 77 of BNS.
Moreover, Section 79 of the BNS being ad rem to Section 509 of the IPC to punish the offence of any word, gesture or act to insult the modesty or privacy of a woman still has the victim as "woman" whereas the perpetrator being "whoever" as gender-neutral.
However, the following sexual offences remain unchanged wherein only a "man" is a perpetrator and a "woman" is a victim:
| Offence | Provision under the IPC | Provision under the BNS |
| Rape | Section 375 | Section 63 |
| Assault or use of criminal force for outraging the modesty of a woman | Section 354 | Section 74 |
| Sexual harassment by physical advances, coloured remarks, showing pornography, demanding or requesting sexual favours | Section 354A | Section 75 |
| Assault or use of criminal force with intent to disrobe | Section 354 B | Section 76 |
| Stalking | Section 354D | Section 78 |
| Word, gesture or act to insult modesty or privacy of a woman | Section 509 | Section 79 |
Even though the judgment of the Supreme Court in National Legal Services Authority versus Union of India, afforded the status to transgender persons as the "third gender" and, thereafter, the Supreme Court in Navtej Singh Johar versus Union of India decriminalised consensual sexual intercourse between persons of the same sex, no protection exists in any legislation for sexual offences to which men or transgender persons are subjected to. In contrast, globally nearly 77 countries have incorporated and enforced gender-neutral rape laws.
The Law Commission of India, vide its 172nd Law Commission Report, dated March 25, 2000, proposed modifying rape laws and making them gender-neutral. Thereafter, the Criminal Law (Amendment) Ordinance, 2013 in India was a significant legislative update aimed at addressing the issue.
The key aspect of this Ordinance was the introduction of gender-neutral language in the definition of sexual offences insofar as perpetrators and victims are concerned.
“The recommendations of the Justice Verma Committee Report, 2013 so far as to widen the ambit of the definition of "rape" was inculcated in the Criminal Law (Amendment) Act, 2013.
The aforementioned Ordinance of 2013 was repealed and replaced by the Criminal Law (Amendment) Act, 2013 with retrospective effect from March 2, 2013.
The recommendations of the Justice Verma Committee Report, 2013 so far as to widen the ambit of the definition of "rape" was inculcated in the Criminal Law (Amendment) Act, 2013.
However, the recommendation as accepted in the Ordinance of 2013 to define victims with gender neutrality was not reflected in the Amendment Act of 2013 which did not retain gender neutrality with regard to victims of rape.
Furthermore, under the Protection of Children from Sexual Offences (POCSO) Act, 2002 and jail manuals, punishment is prescribed for rape or sexual assault of children and men, respectively, but similar rights and protection are not incorporated for the general population without gender contradistinction.
The need for gender-neutral laws for sexual offences is not to undermine the experiences of women as victims of sexual offences. Thus, breaking our silence on the issue of male and transgender sexual offences and questioning social constructs that glorify machismo reduce men and transgenders to stereotypes.
Undoubtedly, there is a dearth of statistics pertaining to the incidents of male, transgenders including and not limited to homosexual rape or sexual assault victims.
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In the absence of legal recourse or remedy under the law, there is no provision for any person except a woman to report rape or sexual assault.
It cannot be forgotten that discrimination is the antithesis of equality and recognition of equality in its truest sense will foster the dignity of every individual. In the landscape of legal justice, the pursuit of equality is not merely an aspiration but a fundamental principle that underpins the legitimacy of the law.
“In the absence of legal recourse or remedy under the law, there is no provision for any person except a woman to report rape or sexual assault.
The Criminal Law Amendment Bill, 2019 was introduced in Rajya Sabha as a private members' Bill on July 12, 2019 and thereafter was re-introduced as Criminal Law (Amendment) Bill, 2021 on December 3, 2021 by member of Parliament K.T.S. Tulsi, with the aim of introducing gender-neutral laws relating to sexual offences seeking an overhaul in the law for rape and other sexual offences to include men and transgender persons as victims.
However, the abovementioned Bill has remained unnoticed even in the formulation of the BNS. Undoubtedly, the IPS and the BNS have advanced the cause of justice for women in India.
Yet the journey towards a truly inclusive legal framework within the contours of the Constitution of India remains incomplete without the incorporation of gender-neutral laws for sexual offences.