Institute of Legal and Management Studies

Former Chief Justice of India UU Lalit criticised the Bharatiya Nyaya Sanhita, 2023 (BNS) for not making the offence of rape gender neutral as to the victim, even as it introduced gender-neutrality in several other offences.

Speaking at a lecture organised by the Supreme Court Bar Association on “BNS 2023 and IPC 1860: Continuity, Change and Challenges,” Justice Lalit said the new law missed an "ideal opportunity” to extend protection to adult male victims of sexual assault after the repeal of Section 377 of the IPC.

He also highlighted that Section 377 IPC, which criminalised “unnatural” sexual intercourse, including bestiality, has been dropped entirely from BNS, partly due to the judgments decriminalising consensual same-sex relations.

However, this coupled with lack of gender neutrality in rape provisions has left male victims with no recourse, he said.

“Now, what if the one adult is actually sort of subjected to it forcibly and without his consent?…So therefore you have not only lost that opportunity of making it gender neutral, which the ordinance had thought of, but you have also dropped 377, which means that if a man without his consent is subjected to that kind of offence, then today where is the window to ventilate the grievance? There is none. And that to my mind is completely an incorrect idea.,” he said.

He added that while the Protection of Children from Sexual Offences (POCSO) Act covers male victims under 18, there is no equivalent provision for adult male victims now. “We have not only thrown the baby along with the bathwater, we have thrown the baby as well,” he remarked.

Justice Lalit pointed out that under the IPC, Section 366A criminalised procuring a “minor girl” for prostitution or other activities, which was not gender neutral. In contrast, Section 96 of BNS uses the phrase “procuring a child,” which would cover male children also.

He welcomed this change as well as the retention of gender-neutral wording in provisions corresponding to Sections 372 and 373 of IPC on selling and buying minors for prostitution, now Sections 98 and 99 in BNS.

He also pointed to four offences introduced in the IPC after the 2013 amendment - sexual harassment, intent to disrobe, voyeurism and stalking - originally Sections 354A, 354B, 354C and 354D. He noted that BNS has made two of these, i.e., intent to disrobe and voyeurism, gender neutral as to the accused, allowing for women also to be prosecuted for these offences. “That is also a welcome idea,” he said.

However, Justice Lalit said the same approach was not followed for rape. He recalled that after the 2012 Delhi gang rape case, the Justice JS Verma Committee recommended changes to Section 375 IPC, leading to an ordinance in February 2013 that made the provision gender neutral so that male victims could also be covered.

“Now imagine that scenario with gender neutrality. What would be the situation if a male child was subjected to gang sexual abuse? The same principle would apply and same sentence would follow,” he said.

He noted that with the 2013 Criminal Law (Amendment) Act, 2013 the definition of rape reverted to the earlier form – a man committing rape on a woman. “I thought that this (BNS) would be an ideal opportunity for the legislature to make it gender neutral,” he said.

Justice Lalit said that except for this gap, everything seems to be going in the right direction in BNS.

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