Breaking The Binary - Does The Bharatiya Nyaya Sanhita (BNS) 2023 Bridge The Gap For Gender Neutrality In India

Author: LawSphereX

Category: Criminal Law

Published: 2026-08-23T18:33:30.005Z

Updated: 2026-08-30T07:05:18.887Z

BREAKING THE BINARY: DOES THE BHARATIYA NYAYA

SANHITA (BNS) 2023 BRIDGE THE GAP FOR GENDER NEUTRALITY IN INDIA R. K. Jayalakshmi, Symbiosis Law School, Pune The Indian legal System, with its colonial legacies and societal complexities, is undergoing a quest for inclusivity that clashes with the rigid binary framework of criminal laws. At the forefront of this change lies the growing discussions and debates on gender-neutral criminal laws. Moving beyond the traditional binary of “male” and “female,” these laws aim to create a legal framework that acknowledges and protects the diverse spectrum of gender identities and expressions. Gender neutrality in rape laws seeks to increase the ambit of the victims of rape and sexual assault. It aims to recognize and normalize rape and sexual assault of male and other genders and to provide equal protection of laws irrespective of their gender.

The Law Commission of India in its 172nd report has recommended changes for widening the scope of the offense in Section 375 of IPC1 and to make the rape laws gender-neutral. It is argued that the principles of equality before the law and equal protection of the law enshrined as fundamental rights in the Indian Constitution must be applied to this situation as well. Prima facie, it can be said that only a gender-neutral rape law would result in equal protection of all identities. 2 The Justice Verma Committee recommended to expand the scope of criminal law to include sexual assault on men, homosexual, transgender, or transsexual rape. The Committee was of the view that rape and sexual assault are not merely crimes of passion but an expression of power.

3 This article probes into a critical analysis of the BNS 2023, dissecting its promises and perils through a gender neutrality standpoint. We'll compare BNS to the Indian Penal Code (IPC), its

1 The Indian Penal Code, 1860 § 375.

2 The 172nd Law Commission of India Report (2000) Law Commission of India. Available at:

https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2022/08/2022082487.pdf

3 Justice Verma Committee report (2013) PRS Legislative Research. Available at

https://prsindia. org/policy/report-summaries/justice-verma-committee-report-summary? searchbox=Criminal%2Bamendment%2Bact%2B2013. colonial predecessor, and examine whether it bridges the gap for diverse gender identities in Indian criminal law. The Shadow of the Binary Traditional criminal laws, often predicated on the binary understanding of gender, fail to adequately address the specific needs and concerns of these diverse communities. The IPC, crafted under British rule in 1860, reflects a world steeped in the binary notion of gender. "Man," "woman," and "husband" dominate its pages, leaving a vast, vulnerable population of transgender, intersex, and non-binary individuals outside its protective ambit. This exclusion breeds injustice, denying these communities access to legal recourse for violence, discrimination, and the very recognition of their existence.

The rules set by our colonisers need to be amended and more progressive laws need to be implemented. But it needs cautious handling so that we prevent reinforcing the loopholes in the existing laws. The BNS 2023, envisioned as a modern overhaul, attempts to address these concerns. However, its progress towards inclusivity remains debatable. Glimmers of Hope: The BNS attempts to move beyond rigid binaries by embracing terms like “person”, “whoever” and “individual” in certain provisions. This is a commendable step in acknowledging the spectrum of gender identities, albeit not universally implemented. For instance, one of the progressive attempts of the Bhartiya Nyaya Sanhita, 2023 which define “gender”—The pronoun “he” and its derivatives are used by any person, whether male, female, or transgender.

4 Lingering Shadows: The BNS Act of 2023 gives 'special attention' to the protection of women and children while sticking to the gendered language of the colonial relic, as well as the patriarchal biases that were preferred a century and a half ago when the IPC was written. This echoes India's history of legal inequality, where even recent attempts at gender neutrality fell short. The dedicated chapter on women and children's offenses, while seemingly helpful, fails to extend this

4 The Bharatiya Nyaya Sanhita, 2023 § 2(10).

protection to people other than women. Even for women and children, the BNS Act has very few additions that make the laws stricter. The BNS has significant shortcomings in the face of strides toward gender neutrality. For instance, Section 2(10)5 which defines “gender” may seem to be gender-neutral, the concern is that the provision, in essence, narrowed down the concept of “Gender” to ‘male, female, or transgender’. India's rich tapestry of gender identities and expressions extends far beyond the male-female binary. Transgenders, genderqueers, intersex, and a multitude of other identities exist, each with unique experiences and vulnerabilities within the legal system. While the substance of the provisions dealing with sexual offenses under the BNS is largely similar to the IPC, a few changes have been proposed.

6 The BNS introduced a new chapter which is limited to ‘Offences Against Women and Children’,7 such restructuring implies that the BNS does not recognize sexual offenses unless they are committed against a woman. Therefore, “rape” under Section 638 of the Act is gendered – it is committed by men and only against women or children, not any other way around. Then what about the legal recourse for non-minor men, transgender and people belonging to other genders who are forced into sexual acts? For the current regime, according to the proposed law, such a thing does not exist. 9 Gendered terms like “man” and “woman” persist in many vital provisions, particularly surrounding rape and domestic violence where the offender can only be a man and the victim, a woman. 10 Rape is a heinous crime that can happen to anyone, regardless of their gender or sexual orientation.

The Rape laws historically defined the victim as a “woman,” excluding men, transgenders, and other non-binary individuals from seeking legal recourse in the context of rape or other forms of sexual violence/harassment. This gender-specific approach reinforces harmful gender stereotypes that perpetuate the idea that only women can be victims of sexual violence. Rape is not confined to any particular age or sex. The lawmakers should infuse the

5 The Bharatiya Nyaya Sanhita, 2023 § 2(10).

6 Shoker, H.K. et al. (2023) Annotated comparison of Bharatiya Nyaya Sanhita bill, 2023 and Indian penal code, 1860, P39A Criminal Law Blog. Available at: https://p39ablog.com/2023/08/annotated-comparison-ofbharatiya-nyaya-sanhita-bill-2023-and-indian-penal-code-1860/.

7 The Bharatiya Nyaya Sanhita, 2023 Chapter V.

8 The Bharatiya Nyaya Sanhita, 2023 § 63

9 Kaur, S. (2023) BNS 2023

Amid provisions for women’s safety, gender equality finds no mention, https://www.outlookindia.com/. Available at: https://www.outlookindia.com/national/bns-2023-amid-provisionsfor-women-s-safety-gender-equality-finds-no-mention-news-318696.

10 Justice JS Verma, ‘The Report of the Committee on Amendments to Criminal Law’, (23 January 2013):

Recommended that definition of rape be expanded to be neutral to the gender of the victim. logic in the laws pertaining to rape and other sexual offenses that both preparators and victims can be of any gender. section 114A of the Indian Evidence Act, in rape cases, the Court presumes that the woman has not given consent if she says so while on the other hand, our laws are not providing basic protective rights against sexual offenses to other sections of the society. It is prima facie gross violation of the right to equality. 11 The attempt of BNS at inclusivity remains largely confined to specific clauses, while the issues like sexual assault and domestic violence, its terminology remains largely gendered, relying on binaries like “male” and “female” in key provisions.

This ambiguity paves the way for discriminatory interpretations and hinders access to justice for individuals outside the binary. Section 37712 under IPC, is the only provision that penalizes offenses such as bestiality and rape of men, it does not find a place in the BNS. Understanding the Need for Gender-Neutral Laws By making rape laws gender-neutral, all victims will receive equal legal protection and recognition under the law, regardless of their gender or sexual orientation. This will help to break down harmful gender stereotypes and promote gender equality. It is important to note that gender-neutral rape laws do not mean that all forms of sexual violence are the same, but rather that the law recognizes different forms of sexual violence and the different ways they can affect victims, regardless of their gender.

Gender-neutral laws will help India to align with International human rights standards and contribute to more progressive and just society. The Indian Legal Landscape and Gender Neutrality The Indian legal system, traditionally rooted in binary notions of gender, is undergoing a gradual yet significant shift towards inclusivity and recognition of gender identities beyond the male-female dichotomy by recognizing and protecting LGBTQ+ rights, the journey towards 11 YADAV, A. (2021) A shift from gender centric to gender-neutral criminal laws precepts of equality and justice, International Journal of Law Management and Humanities. Available at: https://www. studocu. com/in/document/aligarh-muslim-university/ballbhons/a-shift-from-gender-centric-togender-neutral-criminal-laws-precepts-of-equality-and-justice/80433019.

12 Indian Penal Code, 1860 § 377.

gender-neutral criminal laws is still in its nascent stages. Some promising advancements include: • National Legal Aid Services v. Union of India (NALSA)13 and Joseph Shine v. Union of India14 recognized the third gender and granted transgenders equal rights to education, employment, and healthcare. • The Transgender Persons (Protection of Rights) Act, 2019: This Act recognizes the right of transgender individuals to self-identify their gender and grants them access to education, healthcare, and employment opportunities. • The Delhi High Court's landmark judgment in Naz Foundation v. Union of India, 2009: This judgment decriminalized consensual same-sex relationships between adults, although the fight for marriage equality continues.

• Amendments to various criminal laws: The Amendments to laws like the Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act to incorporate genderneutral language and address specific forms of violence faced by the LGBTQ+ community. Conclusion The Bharatiya Nyaya Sanhita, as the cornerstone of the evolving Indian Criminal Justice System, faces the crucial task of adapting to the concept of gender neutrality. Embracing gender neutrality isn't just about legalities; it's about recognizing and protecting the fundamental rights of all individuals. Achieving this requires proactive legislative reforms, a shift in judicial attitudes, and continued engagement with the communities most affected by the limitations of the existing legal framework.

By breaking the binary and fostering a truly inclusive legal system, India can take a step closer to realizing its ideal of justice for all.

13 AIR2014SC1863.

14 2018 SCC OnLine SC 1676.