Introduction
Sexual violence is an act that can destroy a person mentally or physically; it is a serious violation of dignity, bodily autonomy and the right to life under Article 21.1 Over the decades, women have borne the larger share of reported sexual violence, according to the National Crime Records Bureau (NCRB), and their protection must remain.2 The BNS has separate provisions for various sexual offences against women: Section 64 prescribes the punishment for rape,3 and other provisions define the various forms of sexual assault a woman may suffer. The real question, however, is this: “If a safety right is for every person, why do men and transgender persons have no equivalent dedicated provisions of comparable strength?” Indian criminal law offers limited protection to male and transgender victims of sexual assault, especially since Section 377 of the IPC, 1860 was not carried into the BNS,4 as it was the only provision that covered non-consensual acts against men. Adult male victims must rely on the general provisions on hurt in Sections 115 to 117 of the BNS, 2023, which deal with voluntarily causing hurt, grievous hurt and voluntarily causing grievous hurt;5 and transgender victims depend on Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, which prescribes a lower punishment.6 Article 14 provides that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.7 The Article uses the words “any person”, so its protection is not limited to women or to citizens. Article 15(3) separately allows the State to make special provisions for women,8 which supports keeping Section 63 for women while asking for equal protection for others. Every person has the right to feel safe, yet the law and the system do not deliver this equally, and male and transgender victims may find it harder even to have a complaint registered. Beyond the statute, a larger part of the problem lies in the institutional framework: despite the gravity of sexual violence, delays in court proceedings and weaknesses in legal procedure often fail to reflect how serious the crime is. Part II examines the existing legal framework and the protection the BNS provides to women. Part III discusses the gap for other victims. Part IV examines the institutional framework of reporting, policing, medical examination and trial. Lastly, Part V concludes by arguing for “human safety” without weakening women’s protections.
Protection for women: the existing framework
Rape law in India grew out of a recognition that crimes against women were being committed every single hour, and Parliament has laid down provisions and punishments for offences against women. Replacing the IPC, 1860, the BNS, 2023 came into force on 1 July 2024, continuing that framework under a new name.9 Section 63 defines rape; Section 64 prescribes the punishment for rape;10 Section 65 deals with rape of girls under sixteen and under twelve years of age;11 Sections 66, 68, 70 and 71 punish aggravated forms of the offence; and Sections 67 and 69 address special situations.12 These provisions do not only punish the accused; they also protect the victim’s dignity. Section 72 makes it punishable to disclose the identity of the victim, and Section 73 makes it punishable to print or publish court proceedings without the court’s permission.13
Forms of violence change with each generation, and the courts have strengthened protection through their decisions. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983), the Supreme Court held that the victim’s testimony alone can be enough to convict, if it is reliable.14 Afterwards, in State of Punjab v. Gurmit Singh (1996), the Court held that rape trials must be handled sensitively.15 In Lillu v. State of Haryana (2013), it held that the two-finger test violates the dignity and privacy of the victim,16 and in Independent Thought v. Union of India (2017), it read down the marital exception so that it no longer covers wives aged between 15 and 18.17 The Constitution secures women’s rights in Article 15(3), which allows special provisions for women,18 and such a reasonable classification does not violate Article 14,19 given the rapid increase in cases against women. The protection of women came from heartfelt reform and must stay. In the Mathura case, Tukaram v. State of Maharashtra, decided in 1978 on events of 1972, the Supreme Court acquitted two policemen after inferring consent from the absence of injury and resistance, and the decision led to reform.20
The most widely known case in Indian legal history is that of December 2012, when a 23-year-old student was gang-raped in a moving bus; it crossed the limits of brutality and shook the core of India’s justice system.21 Public outrage led Parliament to pass the Juvenile Justice (Care and Protection of Children) Act, 2015, which allows 16- to 18-year-olds to be tried as adults for heinous offences.22 Public pressure turned a single case into a national review of rape law.23 The State should make justice stricter and more accessible, so that every woman in India feels secure and lives freely. Asking for the protection of others does not mean taking it away from women. Yet all these laws, and the definition of rape itself, leave other victims outside the dedicated rape framework.
The gap: men and transgender persons
Chapter V of the BNS (“Of Offences Against Woman and Child”) is built largely around a man as the perpetrator and a woman as the victim.24 Section 63 defines rape as a wrongful act done by a man to a woman. Section 75 (sexual harassment), Section 76 (assault or use of criminal force to a woman with intent to disrobe) and Section 77 (voyeurism) require the victim to be a woman.25 Other victims fall under the general chapters. Section 377 of the Indian Penal Code, 1860 punished “carnal intercourse against the order of nature”; it was the provision that covered non-consensual acts against men, which is why its omission matters.26
Male and transgender persons do not have equivalent dedicated provisions, and the BNS has no replacement for Section 377. In Navtej Singh Johar v. Union of India, the petitioners argued that Section 377 of the Penal Code violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. In his concurring opinion, Chandrachud J. observed that if same-sex relations remained criminalised, men who have sex with men would continue to be marginalised from health services. The Court read down Section 377 only so far as it criminalised consensual sexual acts between adults, and left it to govern non-consensual acts.27 Male victims now depend upon the general provisions on hurt (Section 115), grievous hurt (Sections 116 and 117), wrongful restraint, assault and criminal force.28 The question is whether these provisions carry a punishment comparable to the gravity of the crime.
National Legal Services Authority v. Union of India (2014) recognised transgender persons as a third gender, with rights under Articles 14, 15, 16 and 21.29 That recognition, it is argued here, has not yet been matched by equivalent protection in the criminal law. Section 18 of the Transgender Persons (Protection of Rights) Act, 2019 punishes sexual abuse, but with a far lower punishment than Section 64: imprisonment of six months to two years, against a minimum of ten years for rape.30 Article 14 of the Constitution guarantees equal protection to every person, and Article 15(3) allows special provisions and protection for women, but that does not justify leaving others unprotected.31 Law reform bodies have recommended amending the provisions in favour of other genders too. The Law Commission’s 172nd Report (2000) recommended gender-neutral laws.32 The Verma Committee (2013) also recommended that the victim of rape could be any person,33 but Parliament, after the Criminal Law (Amendment) Ordinance, 2013 had briefly made the offence gender-neutral, confined the final 2013 Act to a woman victim.34 In Sakshi v. Union of India (2004),35 an organisation working with victims of sexual abuse asked the Supreme Court to read “sexual intercourse” in Section 375 of the IPC, the predecessor of Section 63 of the BNS, to include all forms of penetration. The petitioner’s counsel emphasised the need to enlarge the meaning of “rape”, citing decisions from other countries that had begun reshaping their traditional ideas, but the Court declined to widen Section 375 and left the matter to Parliament. Gender-neutral laws for victims, or victim-sensitive provisions, would give equal protection to every gender. Even where a provision exists, the system must deliver it, which leads to reporting, policing, medical examination and trial.
Beyond the text: failure in the system
No matter how strong a provision is, what matters is how it works in reality. A provision protects only if the system delivers it; otherwise it is words on paper, not a protection. To provide protection or implement any law, the institutional framework must be strong, not merely a statutory body, and the problem lies at each stage of that framework. Delays in court proceedings; the stigma, shame and fear of not being believed, which lead to under-reporting; the questioning and blaming of victims; disregard for their dignity and privacy; and a low conviction rate together amount to a failure of the system, which does not yet give effective protection to every victim. The first step towards justice is to report the crime the victim has suffered. In Lalita Kumari v. Government of Uttar Pradesh, the Supreme Court held that registration of a first information report (FIR) is mandatory36 under Section 154 of the Code of Criminal Procedure, 1973, now Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS),37 when the information discloses a cognizable offence, although the Court allowed a preliminary inquiry in some categories of cases. Even so, as the facts of Lalita Kumari itself show, the police do not always register an FIR.38
Reporting a crime may mark the beginning of access to justice and other legal remedies. Rape is a traumatic experience, and a victim retelling the harm suffered may panic. It is important to provide a safe space and a reliable approach: under Section 176(1) of the BNSS, the statement of a rape victim must be recorded at her residence or at a place of her choice and, as far as practicable, by a woman police officer.39 Rape and most sexual offences involve physical evidence, so forensic evidence and medical examination are important steps towards justice. Under Section 164A of the CrPC, now Section 184 of the BNSS, where rape or attempt to rape is under investigation, the victim is medically examined with her consent.40 During the medical examination it is important that the victim is counselled in time. A study by Partners for Law in Development, Towards Victim Friendly Responses and Procedures for Prosecuting Rape, which monitored 16 rape cases in Delhi, found that the medical procedures emphasised only those processes relevant to the collection of evidence to feed into the trial, and neglected continued medical attention to the victim, including treatment of injuries incurred during the assault, and counselling.41
The Ministry of Health and Family Welfare has issued guidelines and protocols on medico-legal care for survivors of sexual violence, including guidance on women, children and special groups.42 The Guidelines recognise that lesbian, gay, bisexual and transgender persons are likely to be targets of hate crimes and may want to talk about the role their sexual orientation played in making them vulnerable to sexual violence, and they state that “[t]heir experience should be given a sincere hearing and validated”.43 But a law or a guideline is of little use if it exists only on paper and is not practised or implemented. The Guidelines themselves record that complaints from marginalised communities often “do not even get recorded”,44 and male victims, it is argued here, meet the same difficulty. Even where a complaint is registered, there are no equivalent dedicated provisions for other victims. On compensation, the Supreme Court asked the National Legal Services Authority (NALSA) to prepare model rules for victim compensation for sexual offences and acid attacks. NALSA’s resulting scheme provides a compensation fund, eligibility for compensation, a procedure for making an application, and procedures for granting compensation and interim relief to the victim, but it is centred on only one gender: it defines sexual assault victims as females.45 It has no counterpart for male and transgender victims, who must look to the general victim compensation schemes framed under Section 396 of the BNSS.46
Conviction rates for rape remain low. According to the NCRB, the conviction rate for rape in India in 2018 was 27.2 per cent, and 88.7 per cent of rape cases sent for trial were still pending at the end of that year, despite the post-2012 legal reforms.47 The reasons for low conviction rates in rape cases are complex and cannot be explained by a single rape myth alone. Much of the problem lies in high attrition, with only a proportion of reported cases resulting in trials. Even a perfect statute fails if the system is not trained and equipped, and a gender-neutral statute alone is not enough. The level of services and support offered must improve, so that investigation and trial become somewhat less traumatic, while gender-neutral laws would widen the definition of rape to focus on the harm suffered by any human being rather than by one gender.
Conclusion
Rape is a traumatic experience for everyone, whatever their gender. The rape provisions of the BNS protect only women and leave other victims without a dedicated provision of comparable strength; there is no equivalent dedicated provision for victims from special groups. Because the BNS sections, carrying forward the definition in Section 375 of the IPC, are framed on the premise that a man commits the act against a woman, men are not treated as victims. This reflects, it is argued, patriarchal thinking that regards men as stronger than women, and the law appears to assume that men cannot be victims. India has accepted international human rights obligations, and, on the argument made here, its domestic law on sexual offences does not yet protect all victims equally. Seeing rape only as a crime against women overlooks other victims who are also harmed, and every citizen has a right to live freely. Protecting other genders does not mean limiting protection for women. Keeping Section 63 of the BNS and all protections for women, this article proposes a gender-neutral offence or a victim-sensitive provision for male and transgender persons, trained police officers, updated medical services and compensation for all victims. Even a good start needs good institutional reform to deliver justice. Strengthening reporting, police investigation, medical examination and trial will give victims a sense of justice. Equal protection should be added, not subtracted.
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Footnotes
1. India Const. art. 21.
2. National Crime Records Bureau, Ministry of Home Affairs, Crime in India 2024: Statistics, Volume I 281-348 (2026) (ch. 3A, Crime Against Women).
3. The Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament, 2023 (India), §§ 63-64 [hereinafter BNS].
4. The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India), § 377 [hereinafter IPC] (repealed by BNS § 358(1), which re-enacts no corresponding offence).
5. BNS §§ 115-117.
6. The Transgender Persons (Protection of Rights) Act, 2019, No. 40, Acts of Parliament, 2019 (India), § 18(d), as substituted by The Transgender Persons (Protection of Rights) Amendment Act, 2026, No. 3, Acts of Parliament, 2026 (India), § 7 [hereinafter Transgender Persons Act].
7. India Const. art. 14.
8. India Const. art. 15, cl. 3.
9. BNS (in force July 1, 2024, except § 106(2), by Ministry of Home Affairs Notification S.O. 850(E) (Feb. 23, 2024)).
10. BNS §§ 63-64.
11. Id. § 65.
12. Id. §§ 66, 68, 70, 71 (aggravated forms); id. §§ 67, 69 (special situations).
13. Id. §§ 72-73.
14. Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 (India).
15. State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 (India).
16. Lillu @ Rajesh v. State of Haryana, (2013) 14 SCC 643 (India).
17. Independent Thought v. Union of India, (2017) 10 SCC 800 (India).
18. India Const. art. 15, cl. 3.
19. India Const. art. 14.
20. Tukaram v. State of Maharashtra, (1979) 2 SCC 143 (India).
21. Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1 (India).
22. The Juvenile Justice (Care and Protection of Children) Act, 2015, No. 2, Acts of Parliament, 2016 (India), §§ 15, 18(3).
23. Committee on Amendments to Criminal Law (Justice J.S. Verma, Chairperson), Report of the Committee on Amendments to Criminal Law (2013) [hereinafter Verma Committee Report].
24. BNS ch. V (“Of Offences Against Woman and Child”), § 63.
25. BNS §§ 75-77.
26. IPC § 377.
27. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India); see id. (Chandrachud, J., concurring) (marginalisation from health services).
28. BNS §§ 115-117 (hurt and grievous hurt), 126 (wrongful restraint), 128-131 (force, criminal force and assault).
29. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India).
30. Transgender Persons Act § 18(d) (imprisonment of not less than six months and up to two years, with fine); cf. BNS § 64(1) (rigorous imprisonment of not less than ten years, up to life).
31. India Const. art. 14; India Const. art. 15, cl. 3.
32. Law Commission of India, 172nd Report on Review of Rape Laws (2000).
33. Verma Committee Report, supra note 23, at 417, 439 (draft § 375, under which a man commits rape if he penetrates “the vagina or anus or urethra of a person”).
34. The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013 (India), § 9 (substituting IPC §§ 375-376D); cf. The Criminal Law (Amendment) Ordinance, 2013, § 8 (Feb. 3, 2013) (India) (defining “sexual assault” by and against any “person”).
35. Sakshi v. Union of India, (2004) 5 SCC 518 (India).
36. Lalita Kumari v. Government of Uttar Pradesh, (2014) 2 SCC 1 (India).
37. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974 (India), § 154 [hereinafter CrPC] (repealed); now The Bharatiya Nagarik Suraksha Sanhita, 2023, No. 46, Acts of Parliament, 2023 (India), § 173 [hereinafter BNSS].
38. Lalita Kumari, supra note 36 (the officer in charge of the police station took no action on the father’s written report of his minor daughter’s kidnapping; an FIR was registered only after the Superintendent of Police was approached).
39. BNSS § 176(1) (second proviso).
40. CrPC § 164A; now BNSS § 184.
41. Partners for Law in Development, Towards Victim Friendly Responses and Procedures for Prosecuting Rape: A Study of Pre-Trial and Trial Stages of Rape Prosecutions in Delhi (Jan 2014-March 2015) vii (2017), https://pldindia.org/wp-content/uploads/2017/06/A-STUDY-OF-PRE-TRIAL-AND-TRIAL-STAGES-OF-RAPE-PROSECUTIONS-IN-DELHI-2017.pdf.
42. Ministry of Health & Family Welfare, Government of India, Guidelines & Protocols: Medico-legal Care for Survivors/Victims of Sexual Violence 11-14 (2014) [hereinafter MoHFW Guidelines].
43. MoHFW Guidelines, supra note 42, at 14.
44. Id. at 12.
45. National Legal Services Authority, Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes 3 (2018) (unpaginated Background, reciting the order in Nipun Saxena v. Union of India, W.P. (C) No. 565 of 2012 (India); cl. 2(o), defining “Sexual Assault Victims” as females).
46. BNSS § 396 (formerly CrPC § 357A).
47. National Crime Records Bureau, Ministry of Home Affairs, Crime in India 2018: Statistics, Volume I 228 tbl. 3A.7 (2020).