Constitutional Implications Of India’s Rape Laws - A Setback To Justice, Equality, And Dignity

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T18:54:56.907832+00:00

Updated: 2026-08-30T07:08:08.680Z

CONSTITUTIONAL IMPLICATIONS OF INDIA’S RAPE

LAWS: A SETBACK TO JUSTICE, EQUALITY, AND DIGNITY Gunseerat Kaur, B.A. LL.B. (Hons.), University Institute of Legal Studies, Panjab University, Chandigarh

ABSTRACT

The introduction of the Bharatiya Nyaya Sanhita (BNS) 2023 signifies a momentous shift in India’s criminal law system, however, the rape provisions take the form of a regressively exclusionary approach that does not encapsulate the changed nature of sexual violence in a modern, diverse society. The BNS 2023 continues with a gendered, binary definition of rape; it leaves out LGBTQIA+ victims and does not criminalize marital rape, thus, diluting constitutional rights of equality, dignity, and bodily autonomy. This framework reinforces irrational pro-gender norms and patriarchal establishments that disregard the global human rights standards, along with India’s constitutional values.

This article contends for a comprehensive reform of rape laws to ensure inclusivity, equality, and justice for all individuals, regardless of gender, sexual identity, or marital status, in alignment with international human rights frameworks.

INTRODUCTION

The 2023 enactment of the Bharatiya Nyaya Sanhita (BNS) to replace the colonial-era Indian Penal Code (IPC) of 1860 signifies a turning point in India’s attempts to reform the criminal law system. This is in accord with the aim of modernizing legal frameworks to meet contemporary needs. 1 However, the provisions on rape under the BNS have, in fact, revealed themselves to be more regressive in nature, both in terms of the institutional spirit of equality embodied in the Indian Constitution and its international human rights commitments. The existing laws on rape, especially those provided in the BNS 2023, still reflect outdated, genderdefined archaic modes, wherein the definition of rape is limited to two binary categories: one based on the gender of the perpetrator, and the other on the gender of the victim.

This narrow definition fails to take into account the multiple experiences of sexual violence that are ubiquitously present in contemporary social structures. Like other existing laws dealing with rape, the BNS perpetuates harmful stereotypes that women are subordinate to men,2 particularly within the confines of matrimony- by treating rape as a crime only when the victim is a woman and the perpetrator a man, while deliberately excluding marital rape from the ambit of the law. Further, the law turns a blind eye to sexual violence against men, transgender individuals, and other members of the LGBTQIA+ community. 3 Such exclusion continues to marginalize these already vulnerable groups, denying them access to essential legal protection and justice.

This article seeks to offer a critical analysis of the constitutional implications of the provisions concerning rape under the BNS 2023, which disregard the rights and privileges of women, men, transgender persons, and the LGBTQIA+ community. It further entrenches dated, patriarchal structures that allow the continuation of gender inequality. This article will explore whether the construction of the law is based on gender, considering the deliberate exclusion of marital rape and the erasure of LGBTQIA+ victims, advocating for a modern and inclusive 1 Ministry of Home Affairs, Union Home Minister and Minister of Cooperation Shri Amit Shah holds a press conference in New Delhi on three new criminal laws, calls the laws victim-centric and justice-oriented, PIB. GOV. IN (July 1, 2024), https://pib. gov. in/PressReleasePage. aspx? PRID=2030088.

2 Supreme Court of India, Handbook on Combating Gender Stereotypes, SCI.GOV.IN (August 16, 2023),

https://cdnbbsr.s3waas.gov.in/s3ec0490f1f4972d133619a60c30f3559e/uploads/2024/01/2024012544.pdf. 3 Alisha Dutta, Bharatiya Nyaya Sanhita has no section dealing with rape of men, transgender persons, THE HINDU (June 22, 2024), https://www.thehindu.com/news/national/gang-rape-of-up-man-highlights-need-forsection-377-in-bns-bill/article68320575.ece.

legal framework

that ensures protection for everyone, regardless of gender, sexual identity, or marital status, in line with India’s constitutional values and its global human rights obligations. THE GENDERED AND EXCLUSIONARY DEFINITION OF RAPE The BNS’s glaring and irrefutable defect is its gendered and exclusionary definition of rape. According to Section 63 of the BNS,4 rape is defined solely as the penetration of a female by a male. This is an insult to the long-standing recognition that men, transgender, and gender non-conforming persons can also be victims of sexual violence. The IPC 1860, in its former provisions, particularly under Section 377, had recognized that sexual violence could also be perpetrated against men and transgenders.

5 Although the landmark decriminalization in 2018 of Section 377 was a step forward for advocacy of LGBTQIA+ rights,6 its collateral omission in the BNS is precisely to serve as a mark of backwardness. The exclusion of men and transgender individuals from the definition of rape continues the antiquated binary view of sexual violence and gender dynamics. This is inconsistent with both global legal standards and the very constitutional values of India. Such exclusion violates the principles enshrined in the Universal Declaration of Human Rights (UDHR),7 and the Convention of the Elimination of All Forms of Discrimination Against Women (CEDAW). 8 These principles ensure that every individual, irrespective of the gender, shall be guaranteed equal protection under the law.

The BNS clearly disregards the lived realities of LGBTQIA+ communities, where individuals are exposed to cruel realities of sexual violence without regard to gender or sexual identity, thus limiting its scope to mere binary gender laws. This exclusion bars male and transgender victims of sexual violence from establishing a legal basis for their suffering and redress, relegating it to other categories of law, like grievous hurt, that afford hardly any recourse or protection. Hence, by not encompassing these potential victims of sexual violence, the BNS not only contravenes universally recognized human rights but also breaches Article 14 of the

4 Bharatiya Nyaya Sanhita, 2023, No. 45, Acts of Parliament, 2023.

5 Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.

6 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

7 Universal Declaration of Human Rights, GA Res 217 A (III), UN Doc A/810, 10 December 1948,

available at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompa ct/A_RES_217(III).pdf. 8 Convention on the Elimination of All Forms of Discrimination Against Women, 1249 U.N.T.S. 13, 18 December 1979, available at: https://www.ohchr.org/sites/default/files/cedaw.pdf.

Indian Constitution, which guarantees equality before the law and protection against discrimination. EXCLUSION OF LGBTQIA+ VICTIMS: ERASURE OF VULNERABLE COMMUNITIES The legal exclusion from the BNS’s rape provisions of transgender and gender non-conforming individuals is an egregious oversight that symbolizes the struggle faced by LGBTQIA+ people in asserting their rights in India. The failure to address the sexual violence that transgenders are subjected to makes the law ineffective, as it does not offer them the legal protections they require. Transgender women have been facing significantly higher levels of both physical and sexual violence,9 yet the current legislation fails to provide appropriate remedies for their plight.

The BNS fails to acknowledge the reality that sexual violence transcends the male-female binary by erasing the potential for same-sex violence in its definition of rape. This exclusion of LGBTQIA+ victims from the purview of sexual violence protections not only contravenes the right to equality, but also undermines several other principles that the Indian Constitution aspires to uphold, such as justice and human dignity. Transgender individuals who experience sexual violence are forced to navigate a hostile legal system that refuses to recognize their unique needs and vulnerabilities, pushing them further into the margins of society. MARITAL RAPE: AFFIRMATION OF GENDER DISPARITY An even more regressive aspect of the BNS 2023 is its failure to criminalize marital rape.

Exception 2 to Section 375 of the IPC states that a husband cannot be accused of raping his wife, even if the act is forced or coerced. This provision stands in stark contrast to how other offenses are treated in Indian law, where no person is exempt from criminal liability, regardless of their relationship with the victim. It was affirmed by the Court in Independent Thought v. Union of India,10 that the present exception is discriminatory because it violates the fundamental right to equality under Article 14 of the Constitution. The BNS retains this

9 Ministry of Social Justice & Empowerment, Report of the Expert Committee on the Issues relating to

Transgender Persons, SOCIALJUSTICE.GOV.IN (Jan. 27, 2014) https://socialjustice.gov.in/writereaddata/Uplo adFile/Binder2.pdf.

10 Independent Thought v. Union of India, A.I.R. 2017 SC 4904.

exception and has failed to seize the opportunity to rectify the law by criminalizing marital rape. The exclusion of marital rape reflects how conventional marriage can adapt to a deeply patriarchal and flawed understanding that sees women, particularly within marriage, as always subordinate to men. The law presumes consent within marriage, which undermines the autonomy and agency of women, reducing them to property rather than human beings in the eyes of both the law and society. This stance is dehumanizing, as it violates women’s dignity and their right to bodily autonomy- rights guaranteed under Article 21 of the Indian Constitution. The BNS solidifies these stereotypical gender roles, viewing women not as individuals with the right to consent, but as objects designated for male sexual gratification.

In contrast, countries such as the UK,11 Canada,12 and New Zealand,13 have long criminalized marital rape, recognizing that consent is not dependent on marital status. India’s failure to include marital rape within the definition of sexual violence not only lags behind international norms but also perpetuates the idea that women’s bodies exist to serve the needs and desires of their husbands, thereby reinforcing the patriarchal structures that continue to undermine gender equality. SYSTEMIC FAILURE AND THE NEED FOR REFORM The BNS 2023 also fails to address the systemic failures that prevent rape victims from receiving justice. The legal process itself is, in most instances, re-traumatizing, with victims subjected to gruelling cross-examinations that focus more on discrediting their testimony than on seeking justice. This has been highlighted in Nipun Saxena v.

Union of India,14 where the Supreme Court called attention to the psychological harm inflicted on rape victims during court proceedings. The cultural attitudes towards rape and sexual violence in petitioners’ perception are still a tool of patriarchal norms that tend to blame victims rather than perpetrators. In Mukesh v. State for NCT of Delhi,15 the court called for societal transformation for deeply ingrained misogyny. The

11 Sexual Offences Act 2003, c. 42 (Eng.).

12 The Criminal Code of Canada 1892, R.S.C. 1892, c. 29.

13 Crimes Act 1961, No. 43 (N.Z.).

14 Nipun Saxena v. Union of India, A.I.R. 2018 SC 826.

15 Mukesh v. State for NCT of Delhi, A.I.R. 2017 SC 2161.

very high rate of sexual violence against women in India reflects not only the fragile legal framework but also actually symbolizes the much deeper cultural acceptance of male entitlement and female subordination.

TOWARDS A PROGRESSIVE AND INCLUSIVE

LEGAL FRAMEWORK

In contemporary India, the rape laws are in dire need of comprehensive reform to move towards a progressive and inclusive protection regime for everyone, regardless of gender identity, sexual orientation, or marital status. A key feature of these reforms will involve replacing the gender-specific definition of rape with a gender-neutral one. Past laws that regard rape as a crime perpetrated by men on women failed to conceptualize the reality that men, transgender individuals, and gender-non-conforming people could also be victims of sexual violence. Consent and bodily autonomy must be recognized by law for all, without contradictions based on any of the outdated gender binaries. Legal provisions must acknowledge that sexual violence occurs irrespective of the gender or sexual identity of the victim or the perpetrator.

Another key reform is the criminalization of marital rape, which is a major void in the current Indian law. The premise of implied consent in marriage reinforces patriarchal norms, treating women as property and their bodies as subordinate to their husbands’ desires. This directly contravenes a woman’s constitutional right to bodily autonomy and dignity. If criminalized, marital rape would surely shift societal views on marriage to one of mutual consent, where no one should be forced against their will, and would also afford every individual the right to maintain their autonomy within the union. In addition, criminal laws on sexual violence must provide specific protections for the LGBTQIA+ community. Transgender women face disproportionately high rates of sexual violence but are frequently excluded, either fully or partially, from legal protections.

When included, they often encounter a legal system that is not supportive of their rights or needs. The legal framework must include provisions where sexual violence is recognized within the LGBTQIA+ community and ensure proper access to justice for its members. Finally, there needs to be reform within the judicial process itself to ensure that it does not exacerbate victim trauma. Trauma-informed processes, which do not reinforce blame against victims and minimize victim harassment within court proceedings, are crucial to ensure that the justice system does not re-victimize survivors.

Bringing these changes in India will not only align the country more closely with international human rights standards but also mark a significant step towards establishing an egalitarian society in which access to justice does not depend on gender identity. Only by recognizing the different kinds of experiences of sexual violence will India be able to build a robust governing body capable of preserving every citizen’s rights and dignity.

CONCLUSION

The provisions relating to rape in the Bharatiya Nyaya Sanhita (BNS) 2023 represent a significant setback for gender equality and the protection of fundamental human rights in India. By not recognizing men, transgender persons, and the LGBTQIA+ community as possible victims of sexual violence, coupled with the exclusion of marital rape, this law reinforces archaic, patriarchal standards that devalue and diminish the dignity, autonomy, and equality of all. Such regressive provisions are not only contrary to the constitutional mandates established in India but also stand in sharp violation of global human rights standards that ensure equality and non-discrimination. Reforms in the application of laws concerning rape must occur for India to truly afford every citizen the rights they are entitled to.

These reformed laws should be gender-neutral, with further extensions toward becoming inclusive and synchronized with the global human rights regime. By enacting a bold and progressive law, India can move towards becoming a more liberal, equitable, and gender-balanced society- one in which all citizens are protected by the law, free from discrimination and any form of intimidation. This shift would ensure that every individual is afforded the legal safeguards they are entitled to, fostering a truly just and inclusive society.