Authored By: Snigdha S Shankar
Symbiosis Law School, Pune
Introduction
Sexual violence is a profound violation of human dignity and bodily autonomy, an act of power and degradation that knows no gender of its victim. However, India’s legal framework has been defining this crime through a narrow and gendered lens for a long time. The crime of rape is rigidly constructed under both the IPC (Section 375) and BNS, wherein the perpetrator is exclusively a man and the victim a woman[1]. This binary definition, therefore, creates a legal void.
This approach continually denies justice to male and transgender survivors, whose experiences are left legally unrecognised[2]. Such a legal framework contradicts the promise of equality enshrined in Article 14[3]. Making India’s rape laws gender neutral is an urgent moral and human rights imperative, and an essential reform need to recognise the dignity of all survivors, regardless of gender, to build an equitable legal system.
The Current Legal Landscape: A Flawed and Exclusionary Framework
India’s legal framework for rape is built on the foundation of obsolete principles that have created a legacy of exclusion that even the recent legislative changes did not change. The present law is not a universal shield against sexual offenses but a gender-specific provision that only protects one gender while leaving the others defenseless. The traditional definition in Section 375 of the IPC explicitly shows the perpetrator as a man and the victim as a woman[4], a product of the patriarchal past where rape was framed as a crime against a woman’s honour and her family’s property[5]. Rape must be seen as a violation of bodily integrity regardless of the victim’s gender.
The BNS retained the gender-specific definition of rape, ignoring decades of advocacy to reform[6]. In fact, it worsened the situation by removing Section 377 of the IPC[7]. Its removal has created a dangerous legal vacuum, where a man or transgender victim of rape has no specific law for recourse, having to file a complaint under the weaker charge of “grievous hurt,” a bailable offense with a lighter sentence, and therefore trivialises their trauma and cements an actively discriminatory legal framework[8], as seen in Sudesh Jhaku v. K.C.J. (1995)[9].
The Imperative for Change: Why Gender Neutrality is Essential
India’s current framework is in direct contradiction with Article 14 of the constitution, which guarantees equality before the law and equal protection of the laws to all persons[10]. A law that defines a crime based on the gender of a person is discriminatory and does not uphold the country’s obligation to protect the fundamental rights of every individual[11]. In Navtej Singh Johar v. Union of India (2018)[12], the court acknowledged the historical injustices faced by sexual minorities. By failing to provide protection against non-consensual sexual acts for them, the law is discriminatory. This has devastating consequences for male and transgender survivors of sexual assault. As seen in the NALSA v. Union of India (2014), as the Supreme Court recognised the right of transgender persons, it is logical to extend the protection of sexual assaults laws to both them and men[13]. The failure of this is a direct contradiction to the spirit of the judgement.
Social stigma, along with rigid masculine stereotypes create a toxic environment where males are shamed into silence, with their experiences dismissed or ridiculed[14]. The current law reinforces this harmful silence. It is important to understand that sexual assault is not only a product of sexual desire that is confined to male-female paradigm, but an act of power, violence and degradation against an individual[15]. Instead of focusing on the genders of the perpetrators and victims, the law should lay focus on the non-consensual violation of an individual’s bodily autonomy and dignity, treating rape as a crime against a person’s right to self-determination, a universal principle[16]. The discussions around what constitutes legal consent shows that the law is capable of nuanced analysis, which is something that should be applied universally.
A gender-neutral legal framework would also bring India closer to its international human rights obligations. Instruments such as the Universal Declaration of Human Rights[17] and the International Covenant on Civil and Political Rights[18] recognize the inherent dignity, equality, and security of every individual, irrespective of gender. While these instruments do not prescribe the exact form of domestic criminal law, they reinforce the principle that states have a duty to provide equal protection against violence to all people. Several jurisdictions, including the United Kingdom[19], Canada[20], and Australia[21] have already adopted gender neutral approaches to sexual offences, demonstrating that recognising all survivors does not diminish protections available to women. Instead, these reforms have shifted the focus from the identity of the victim or perpetrator to the absence of consent and the violation of bodily autonomy. India, as a constitutional democracy committed to equality and dignity, must similarly ensure that its criminal law reflects these universal principles and evolves alongside changing social realities[22].
Addressing the Counterarguments
Resistance to gender neutral reform often stems from two main reasons for concern: i) that it will dilute the focus on the widespread sexual violence that is faced by women, and ii) such laws could be misused against women.
While these concerns are called for, they are not unconquerable. The goal is not to decrease the protection of women but rather to extend it to all genders, and therefore, strengthening the principles of justice rather than weakening it. The solution to the potential misuse lies in procedural safeguards and thorough, unbiased investigations of the cases[23]. The assumption that gender-neutral rape laws would inevitably increase false accusations is not supported by evidence. False complaints are a concern in every criminal offence, yet the possibility of misuse has never been considered sufficient justification to deny legal protect to an entire group of victims.
Criminal law already incorporates safeguards such as the presumption of innocence, the requirement of proof beyond reasonable doubt, judicial scrutiny, and penalties for filing false complaints. These mechanisms are designed to prevent wrongful convictions irrespective of the genders of the accused and the complainant.
Rather than excluding male and transgender survivors from the scope of rape laws, the legal system should focus on improving investigative standards, ensuring impartial adjudication, and strengthening victim support services. A gender-neutral framework does not erase the disproportionate burden of sexual violence borne by women. Instead, it acknowledges that while women remain most of the victims, the law must remain capable of protecting every individual whose bodily autonomy has been violated.
The Way Forward: Legislative Action and Societal Shift
The call for gender-neutral laws is not a new idea but has been a part of India’s legal discourse for many years. The 172nd Report of the Law Commission of India has already recommended replacing rape with a gender-neutral offense of “sexual assault,” a recommendation that was ignored by the legislature[24]. Similarly, in the 2012 Delhi gang rape case, the Justice Verma Committee Report suggested making several sexual offenses gender-neutral, showing how these expert consensuses have been overlooked continuously[25]. In Sakshi v. Union of India (2004)[26], the Supreme Court itself recognised the shortcomings of the law, demonstrating that the call for reform is not new and has judicial backing. The legislature failed to act despite clear signals from the judiciary.
However, changing the letter of law is not enough. For true justice to be realised, there need to be a corresponding shift in the entire criminal justice system. As research on the role of public prosecutors shows, there is usually a significant gap between what a victim needs from the system and what is delivered to them[27]. This gap would be even wider for a male or transgender survivor who is navigating a system that is untrained to acknowledge their trauma. Therefore, legislative reform must be accompanied by sensitisation and training for police, prosecutors and judges to ensure that all citizens are treated with the dignity and seriousness their cases deserve.
Conclusion
India’s insistence on a gender-specific definition of rape showcases a profound legal and moral failure, something that is a relic of a patriarchal past and one that is fundamentally incompatible with the constitutional promise of equality. The current legal framework under the BNS not only denies justice to male and transgender rape survivors but also discriminates against them, leaving them unable to seek justice, in a legal void. The arguments against reform, although understandable, fail to withhold the principle that justice cannot be selective.
The call for gender-neutral laws is not an attempt to diminish the reality of sexual violence against women, but rather to affirm that the violation of bodily autonomy is a crime against human dignity and not one related to a single gender. The legislature must choose whether to continue upholding a discriminatory law that silence victims or to enact an inclusive framework that recognises the suffering of every individual. By embracing gender neutrality, our country can take a step toward a just and equitable society, where law protects all its citizens, and justice is blind to gender.
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[1] Nikunj Kulshreshtha, Ought the Rape/Sexual Assault Law in India Be Gender Neutral?, SSRN Elec. J. (2019), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3704050 (last visited July 19, 2026).
[2] Joshita Jothi & Keshavdev J.S., Rethinking Rape: Should the Law Still Confine to the Paradigm?, NLUJ L. Rev., https://www.nlujodhpur.ac.in/downloads/lawreview/Final_Rethinking%20Rape.pdf (last visited July 19, 2026).
[3] Flavia Agnes, Law, Ideology and Female Sexuality: Gender Neutrality in Rape Law, 37 Econ. & Pol. Wkly. 844 (2002), https://www.jstor.org/stable/4411809 (last visited July 19, 2026).
[4] Indian Penal Code, No. 45 of 1860, § 375 (India).
[5] Shweta Kabra & Adv. Sonal Gupta, Gender Neutral Laws—How Needful in India?, http://docs.manupatra.in/newsline/articles/Upload/3FE150D0-E784-49BD-8328-4134C0E87955.pdf (last visited July 19, 2026).
[6] Saksham Agrawal, Gender-Neutral Rape Laws in India: Limitations of the BNS, LHSS Collective (May 3, 2024), https://lhsscollective.in/gender-neutral-rape-laws-in-india-limitations-of-the-bns/ (last visited July 19, 2026).
[7] Indian Penal Code, No. 45 of 1860, § 377 (India).
[8] CJP Team, New Rape Laws Leave Men and the Transgender Community Vulnerable, CJP (June 26, 2024), https://cjp.org.in/new-rape-laws-leave-men-and-the-transgender-community-vulnerable/ (last visited July 19, 2026).
[9] Sudesh Jhaku v. K.C.J., 62 D.L.T. 563 (Delhi H.C. 1996).
[10] INDIA CONST. art. 14.
[11] The Need for Gender-Neutral Rape Laws in India, Juris Centre (July 15, 2024), https://juriscentre.com/2024/07/15/the-need-for-gender-neutral-rape-laws-in-india/ (last visited July 19, 2026).
[12] Navtej Singh Johar v. Union of India, (2018) 10 S.C.C. 1 (India).
[13] Nat’l Legal Servs. Auth. v. Union of India, (2014) 5 S.C.C. 438 (India).
[14] Kerti Sharma & Shipra Tiwari, Should Sexual Offences Be Gender Neutral, SCC Online Blog (May 27, 2021), https://www.scconline.com/blog/post/2021/05/27/should-sexual-offences-be-gender-neutral/ (last visited July 19, 2026).
[15] Joshita Jothi & Keshavdev J.S., Rethinking Rape: Should the Law Still Confine to the Paradigm?, NLUJ L. Rev., https://www.nlujodhpur.ac.in/downloads/lawreview/Final_Rethinking%20Rape.pdf (last visited July 19, 2026).
[16] Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, 11 Asian J. Compar. L. 367 (2016), https://www.cambridge.org/core/journals/asian-journal-of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape-law/9BC983FB009B7BBDEB78CED0BC5144C0 (last visited July 19, 2026).
[17] G.A. Res. 217 (III) A, Universal Declaration of Human Rights arts. 1, 3, 7 (Dec. 10, 1948).
[18] International Covenant on Civil and Political Rights arts. 2, 3, 26, Dec. 16, 1966, 999 U.N.T.S. 171.
[19] Sexual Offences Act 2003, c. 42 (U.K.).
[20] Criminal Code, R.S.C. 1985, c. C-46, §§ 271–273 (Can.).
[21] Crimes Act 1900 (NSW) pt. 3, div. 10 (Austl.).
[22] INDIA CONST. art. 14.
[23] Monalisa Das, Should Rape Laws in India Be Gender Neutral? Experts Weigh In, The News Minute (Feb. 3, 2018), https://www.thenewsminute.com/news/should-rape-laws-india-be-gender-neutral-experts-weigh-75834 (last visited July 19, 2026).
[24] Saksham Agrawal, Gender-Neutral Rape Laws in India: Limitations of the BNS, LHSS Collective (May 3, 2024), https://lhsscollective.in/gender-neutral-rape-laws-in-india-limitations-of-the-bns/ (last visited July 19, 2026).
[25] Monesh R. B., Rape Laws in India: A Gender Perspective, SSRN Elec. J. (2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4309580 (last visited July 19, 2026).
[26] Sakshi v. Union of India, (2004) 5 S.C.C. 518 (India).
[27] Shraddha Chaudhary, Reconceptualising Rape in Law Reform, 17 Socio-Legal Rev. 156 (2017), https://repository.nls.ac.in/slr/vol13/iss2/5/ (last visited July 19, 2026).
