If a man or transgender person faces sexual violence, does the new criminal law provide equal protection? Delhi High Court will examine why BNS removed Section 377-like offences without creating a gender-neutral sexual offence
NEW DELHI: The Delhi High Court has agreed to examine a petition challenging the gender-specific nature of rape and sexual offence provisions under the Bharatiya Nyaya Sanhita (BNS). The petition argues that the present law mainly recognises women as victims and does not provide similar protection to men, transgender persons and other gender identities in cases of sexual violence.
The matter came before a Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia. The Court observed that it cannot create a new offence similar to Section 377 of the Indian Penal Code (IPC), which was removed from the BNS.
Section 377 IPC earlier punished non-consensual acts described as “against the order of nature with any man, woman or animal“. It provided imprisonment of up to 10 years. However, after the introduction of BNS, there is no separate provision covering such offences, while rape provisions continue to apply mainly to a male offender and female victim framework.
The petitioners argued that several BNS provisions relating to rape, sexual assault, stalking, voyeurism and other sexual offences are unconstitutional because they do not provide equal legal remedies to male and transgender victims. They sought either a gender-neutral interpretation of these provisions or directions to the Central government to amend the law.
During the hearing, the Bench said the issue involves legislative policy and cannot be addressed by the Court by creating offences through interpretation.
“We understand your [petitioners’] anxiety, but these are legislative policy matters… The offence has to be described. Which is the authority that can do it? It’s the legislature. What can we do about it? Can we provide something which is not provided for by the legislature? Can we by judicial fiat create an offence?”
The Court further observed that offences relating to women cannot be expanded to cover situations that were earlier dealt with separately under Section 377 IPC.
“The problem which you are facing is dropping of Section 377 [IPC] from BNS. Now, to reach that, you are targeting the offences against women. The offences against women were always offences against women. There was a separate category of unnatural offences, which has been dropped. Now, you can’t use Article 14 [of the Constitution] to reach the same destination by targeting offences against them because those offences were always there,”
The petition was filed by advocates Shubhi Srivastava, Ajay Kumar Singh, Prince Kumar, N Zubemo Lotha, Garima Singh and former civil servant Ashok Kumar Singh.
The petitioners highlighted that Sections 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 75, 77, 78 and 81 of the BNS mainly operate within a framework where the accused is a man and the victim is a woman. According to the plea, this leaves men, transgender persons and third-gender individuals without specific legal protection in cases of sexual violation.
The petition also pointed out that Section 377 IPC was removed from the new law after courts had already decriminalised consensual adult private acts. The petitioners argued that the government removed the provision but did not introduce any replacement for non-consensual acts, creating a serious legal gap.
During arguments, the petitioners’ counsel said that victims may now have to rely on general offences instead of specific sexual offence provisions.
“Now, what will happen if a man is violated or an animal is violated? The police with the offence of hurt or grievous hurt,”
The Delhi High Court clarified that while it understands the concerns raised by the petitioners, making a new offence is the responsibility of Parliament. The Court has tagged the matter with other petitions raising similar concerns and will hear the case further in October.
The case has brought attention to the debate over whether India’s new criminal laws provide equal protection to all victims of sexual offences, especially men and transgender persons who may face sexual violence but do not find specific recognition under the present BNS framework.
LAWS AND SECTIONS DISCUSSED IN THE CASE
| LAW / SECTION | WHAT IT PROVIDES | IMPORTANCE IN THIS CASE |
| Bharatiya Nyaya Sanhita, 2023 (BNS) | India’s new criminal law replacing the Indian Penal Code, 1860 | The petition challenges that several sexual offence provisions under BNS continue a male-perpetrator and female-victim structure |
| Section 63 BNS | Defines rape under the new criminal law | Petitioners argue that the provision recognises only women as victims and does not cover male or transgender victims |
| Section 64 BNS | Punishment for rape | Challenged for being limited to offences involving women victims |
| Section 65 BNS | Punishment for rape in specific aggravated situations | Petitioners argue protection is unavailable to male and transgender victims |
| Section 66 BNS | Punishment for causing death or persistent vegetative state of victim during rape | Part of provisions challenged for gender-specific approach |
| Section 67 BNS | Sexual intercourse by husband upon wife during separation | Mentioned among challenged provisions |
| Section 68 BNS | Sexual intercourse by a person in authority | Included in petition challenging gender limitations |
| Section 69 BNS | Sexual intercourse by employing deceitful means | Petition questions gender-specific application |
| Section 70 BNS | Gang rape provision | Petitioners seek broader protection beyond female victims |
| Section 72 BNS | Disclosure of identity of victim of certain offences | Included among challenged provisions |
| Section 73 BNS | Printing or publishing identity of victim | Included in challenge |
| Section 75 BNS | Sexual harassment | Petition argues sexual harassment protection should not be limited by gender assumptions |
| Section 77 BNS | Voyeurism | Petition seeks gender-neutral interpretation |
| Section 78 BNS | Stalking | Included among provisions challenged |
| Section 81 BNS | Offence relating to sexual exploitation/related conduct | Mentioned in the PIL challenge |
| Section 377 IPC (Indian Penal Code, 1860) | Punished non-consensual acts described as “against the order of nature with any man, woman or animal” | Petitioners argued that removal of this provision from BNS created a legal gap for male and transgender victims of sexual violence |
| Article 14 Constitution of India | Guarantees equality before law and equal protection of laws | Petitioners relied on Article 14 to argue that denying protection based on gender creates inequality |
| IPC Section 377 and Supreme Court Judgment | Consensual adult private sexual acts were decriminalised, but non-consensual acts remained punishable | Petitioners argued the government removed Section 377 from BNS without replacing the protection for non-consensual acts |
CASE DETAILS
| PARTICULARS | DETAILS |
| Case Title | Public Interest Litigation challenging gender-specific sexual offence provisions under the Bharatiya Nyaya Sanhita (BNS) |
| Court | High Court of Delhi at New Delhi |
| Case Type | Public Interest Litigation (PIL) |
| Main Issue | Challenge to gender-specific sexual offence provisions under BNS and absence of a Section 377 IPC-like provision for non-consensual acts involving male, transgender and other victims |
| Petitioners | Shubhi Srivastava, Ajay Kumar Singh, Prince Kumar, N Zubemo Lotha, Garima Singh and former civil servant Ashok Kumar Singh |
| Counsels for Petitioners | Advocates representing the petitioners (names not fully available in the reported order) |
| Respondent | Union of India / Central Government |
| Bench | Chief Justice Devendra Kumar Upadhyaya and Justice Tejas Karia |
| Hearing Issue | Whether BNS sexual offence provisions can be interpreted as gender-neutral or whether legislative amendment is required |
| Next Hearing | Matter tagged with similar petitions; listed for further hearing in October |
KEY TAKEAWAYS
- Legal Blind Spot for Male Victims: BNS recognises rape mainly through a male offender–female victim framework, leaving men facing sexual violence without a specific equivalent offence.
- Section 377 Gap After Removal: Removing Section 377 IPC without adding a gender-neutral replacement has created concerns about protection for male and transgender victims of non-consensual sexual acts.
- Equality Before Law Questioned: The petition raises whether Article 14 equality can exist when similar crimes receive different legal recognition based only on the victim’s gender.
- Men’s Trauma Needs Legal Recognition: Sexual violence against men is a serious crime, and victims should not be forced to rely only on general offences like hurt or grievous hurt.
- Parliament Must Address the Gap: Delhi HC observed that courts cannot create new crimes, placing responsibility on lawmakers to ensure equal protection for every victim.
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