Old Wine In A New Bottle: India’s New Criminal Laws, With Old Traditional Mindset?

India’s recent update of its criminal laws from the Indian Penal Code (IPC), 1860 to the Bharatiya Nyaya Sanhita (BNS), 2023-promised a modern approach to sexual violence. Yet its rape provisions remain firmly rooted in a female-centric model, reflecting an outdated and traditional Indian bias that equates rape exclusively with a man assaulting a woman. By surrounding protections and laws solely around women and children, the BNS sustains a legal blind spot that pass over the lived realities of male survivors. 

From the foundation of Section 375 of the Indian penal code (IPC) 1860, rape was defined strictly as an act by a man upon a woman. Progressive landmark reports-the 172nd Law Commission in 2000 and the Justice Verma Committee in 2013-urged and encouraged gender neutrality, yet legislative amendments have in line preserve gender-specific language. This polarity between expert suggestions and legislative inertia emphasize a constant reluctance to recognize that sexual violence oversteps gender binaries. 

Statistical data further exposes this gap. According to the 2021 annual report of National Crime Records Bureau (NCRB), more than 31 thousand rape cases were registered, or an average of 86 cases daily-highlighting the scale of female abuse. A survey by the Centre for Civil Society found that 16.1% of men experienced forced sex by women, and 2.1% by other men. Non-binary and transgender individuals report assault rates as high as 47%, yet a lacuna in the law under the BNS framework. 

Tracing India’s statutory development uncovers the origin of this detriment. Section 375 of the IPC was born in a patriarchal age that assumed only women possessed sexual autonomy. Although prestigious jurists such as Baxi and Kumar have criticized this bias and courts-like Delhi High Court in Smt. Sudesh Jhaku v. K.C.J. acknowledged male child survivors, the foundational provisions have remained same. Even the Transgender Persons (Protection of Rights) Act, 2019, gives lighter punishments for sexual offences against transgender people, which clearly shows inaction potentially leaving the problems unaddressed. 

Under the BNS’s Chapter V, “Offences Against Women and Children,” rape is classified as a crime exclusively against a woman. Section63 begins bluntly with “a man is said to commit rape.” and defines penetration only in terms of assault on a woman’s body-vagina, mouth, urethra, or anus. By establishing such gendered language, the law effectively denies recognition to any survivor whose experience falls outside this typical narrow-minded template. 

This framework not only exclude non-female survivors but also breach India’s constitutional promise of equality. Article 14 guarantees equality before the law, and Article 15 prohibits discrimination on grounds of religion, race, caste, sex, or place of birth. By offering protection to one gender alone, the BNS’s rape provisions risk infringing these fundamental rights-yet the code rests gender-specific. 

Internationally, the trend favors gender-neutral legislation. A 2013 study of 96 countries revealed that 63 have adopted gender-neutral rape laws, shifting focus from the perpetrator’s and victim’s gender to the act itself. The United Nations initiated this act-based model, urging member states to ensure all survivors-regardless of gender identity-receive equal protection. India’s continued bonding to a gender-specific model places it out of step with these modern legal standards. 

Legislative overhaul of the law is challenging. To amend the BNS to be the gender-neutral law, it would require thorough review and revision of interrelated provisions—a backbreaking process that requires political will and legislative cooperation. Ensuring that newly revised sections live with improved safeguards for women as well as man and ensure calls for careful drafting not to create unintended loopholes or backtrack on women's rights.

Indian rape laws, especially BNS should consider sexual violation as a violation of personal dignity and bodily autonomy, irrespective of gender. Ultimately, by enacting gender-neutral provisions, India creates a more inclusive and equitable legal system, where all individuals are protected from sexual violence and have access to justice which is not determined by gender but by the act of violation itself. By prioritising the safety and well-being of all individuals, the nation can ensure that no survivor is left unheard or unprotected. 

This article is authored by Prachi Soni. She was among the Top 40 performers in the Quiz Competition on New Criminal Laws organized by Lets Learn Law.