BNS leaves male, transgender sexual assault survivors without rape law protection

When the Bharatiya Nyaya Sanhita (BNS) was introduced in 2024, replacing the Indian Penal Code (IPC), the LGBTQIA+ community was left without a dedicated legal provision for rape. Though the new criminal code adopts many of the same provisions as the IPC, the safeguards provided to members of the queer community against sodomy are absent, argue experts.

In 2018, the Supreme Court decriminalised consensual same-sex relations by reading down Section 377 of the IPC. When the BNS replaced the colonial-era code, it completely omitted an equivalent to Section 377. Currently, Section 63 of the new code defines rape strictly as an act committed by a man against a woman, leaving cisgender men, gay men, and transgender persons without a dedicated sexual assault provision for non-consensual penetrative acts.

‘No clear remedy’

The exclusion of certain rape victims from the BNS’s provisions means that many are left without a clear legal remedy and forced to suffer in silence. Veer (name changed), now a college student at one of Delhi-NCR’s more prominent institutions, was sexually assaulted multiple times during his time at the college. Despite contacting authorities, no action was taken.

“I was sexually assaulted multiple times at my hostel by an individual who had already been accused of rape by others, as well as other seniors,” he said.

“I still do not know my identity but I know that what happened was wrong. I contacted the police and told them I had been raped, but they said that there was no provision under which to register the case. I just left the hostel. I took a lesson from those incidents and moved on because life goes on,” he said.

Pratham (name changed) suffered a similar ordeal while travelling on the metro.

“I was travelling in the metro a couple of weeks ago, standing near the passage connecting to the other coach. A middle-aged man stood in front of me, and suddenly, he started rubbing his back against me. I just froze in horror; I did not know how to react. I honestly did not have any proof or video evidence of something like this happening to me, but what was more shocking was that the [police] refused to believe me,” he said.

Societal assumption

Certain parts of Section 377 (IPC) enabled male and transgender victims to seek legal recourse in cases of sexual assault.

Sharif Rangnekar, a queer activist from Delhi and the director of the Rainbow Literature Festival, said the BNS left no room for legal safeguards for men or transgender people in the community.

“The absence of provisions for men in the criminal code reflects a societal assumption that they are resilient and strong, devoid of emotional vulnerability. This also makes it more difficult for men to establish violations against them,” he said.

He added that these factors would discourage members of the transgender community or heterosexual men from approaching the police. “As a survivor, I know how difficult it can be to navigate the legal system in cases involving male survivors and members of the transgender community.”

Sections 118 and 114

The punishment for the offence defined under Section 63 of the BNS is imprisonment for a minimum of 10 years, which may extend to life imprisonment or death. In cases involving the sexual assault of children below the age of 18, the minimum punishment is 20 years’ imprisonment, which may also extend to life imprisonment or death. Men and transgender persons are not covered under these provisions; according to legal experts, similar offences against men are instead prosecuted under Section 118 (grievous hurt) or Section 114 (hurt).

The punishment for causing hurt is imprisonment of up to one year. For causing grievous hurt, the punishment is imprisonment for a minimum of seven years, along with a fine, or both.

The absence of provisions of Section 377 (IPC) in the new BNS means men who survive sexual assault are not able to seek punishment proportionate to the crime. Supreme Court advocate Rohin Bhatt said, “To put matters into perspective, the maximum punishment of seven years does not exactly deter culprits from committing the particular crime. Although parts of Section 377 were concerning and draconian, it provided the legal recourse that a survivor could approach.”

Section 377 of the IPC was concerned with “unnatural offences” which were defined as, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The punishment for the offence under the section was a minimum of 10 years’ imprisonment, which could extend to life imprisonment.

‘Discriminatory and unfair’

A prominent queer rights activist said the only way the section could be repealed was through multiple movements across the country.

“The queer community will have to organise protests and movements across the country to fight against the exclusion of the community. It is discriminatory and unfair to the many citizens of the country,” he said on condition of anonymity.

A senior Delhi Police official said no directive had been issued by the government regarding the reading of the section to protect male or transgender survivors.

“We have not received any brief regarding the exclusion of provisions under Section 377, and male or transgender survivors have not been mentioned in the criminal code. Their cases will have to be read under the pertaining sections under hurt or grievous hurt,” she said.