THE LEGAL VOID: WHY BHARTIYA NYAYA SANHITA 2023 FAILS MALE AND TRANSGENDER VICTIMS
The Bhartiya Nyaya Sanhita (BNS) 2023 was enacted to modernize and reform the Indian Penal Code. However, despite its progressive vision, it still contains certain legal gaps—one of the most concerning being its approach to sexual offences.
This article critically analyses a major flaw in the code: its failure to recognize men and transgender individuals as victims of rape and sexual harassment. It highlights the urgent need for gender-neutral and inclusive reforms that align with the principles of equality enshrined in the Indian Constitution.
Introduction
This Sanskrit phrase from the Mahabharata means that justice (dharma) and true victory are inseparable.
If the Indian criminal justice system aims to achieve its true constitutional purpose—equality before the law—it must become blind to gender. Only then can true justice and victory be achieved.
Despite the reformative goals of the BNS, 2023, Section 63 (Rape) and Section 75 (Sexual Harassment) remain non-gender-neutral. Males and transgender victims are left without any legal recourse or recognition. There is an urgent need for a stronger and more inclusive legal framework.
Recommendations of the Justice Verma Committee
The Justice Verma Committee (2012) recommended adopting a gender-neutral approach to sexual violence laws. However, its suggestions were not fully implemented in the Criminal Law (Amendment) Act, 2013.
The committee strongly advocated for gender-neutral provisions in the Indian Penal Code, which could have been incorporated into the BNS. Unfortunately, the legislature failed to consider these recommendations while enacting the new code.
Societal Silence and Psychological Trauma
Male and transgender victims of sexual violence face a double burden—a lack of legal protection and deep social stigma.
Traditional notions of masculinity discourage men from reporting sexual crimes. Many fear being perceived as weak or less masculine, which leads to silence and emotional distress.
Similarly, transgender individuals face discrimination and identity bias, which prevents them from speaking about their experiences. The lack of legal recognition and societal empathy often leads to psychological trauma, including depression, anxiety, and post-traumatic stress disorder (PTSD).
Breach of Constitutional Trust
The law currently penalizes any person who commits sexual harassment or rape against a minor, irrespective of gender, under the POCSO Act, 2012. However, no such protection exists for adult male or transgender victims.
Transgender individuals were recognized as the third gender in the landmark judgment NALSA v. Union of India (2014), which granted them fundamental rights. Yet, there is still no legal safeguard to protect them from sexual violence.
This gap in the BNS framework violates Articles 14 and 15 of the Indian Constitution, which guarantee equality before law and prohibit discrimination based on sex. It also infringes upon the human rights of male and transgender victims to live with dignity and safety.
Global Perspective
Globally, countries such as the UK, Canada, and Australia have already enacted gender-neutral sexual assault laws. These nations focus on the principle of consent, regardless of gender.
India, however, still lags behind in adopting a similar inclusive approach. Aligning with global standards will not only promote equality but also strengthen public trust in the justice system.
Suggestions
The solution is straightforward—enact and enforce gender-neutral laws as suggested by the Justice Verma Committee.
Examples from countries like the UK and Canada show that sexual assault laws based on lack of consent, not gender, are more effective and just. The Bhartiya Nyaya Sanhita must also prioritize consent and equality over gender in defining sexual crimes.
Conclusion
The Bhartiya Nyaya Sanhita (BNS), 2023 has failed to adopt gender-neutral rape and sexual harassment provisions. The Indian government must urgently amend Sections 63 and 75 to ensure inclusivity and equality.
India’s Constitution and several international covenants recognize the universal right to dignity and safety, regardless of gender. Ensuring gender-neutral sexual offence laws is not just a legal necessity—it is a moral imperative.
Article written by
Sahil Sharma
University Institute of Legal Studies, HPU Shimla, 171004
