India's Rape Law Says Only A Woman Can Be A Victim

In India today, if a man is raped, the law does not call it rape. If a transgender person is raped, the law does not call it rape either. This is not an oversight in how a case is argued in some far corner of the country. It is written into the letter of the law itself. The offence of rape, as India defines it, can only be committed by a man, and can only be suffered by a woman. Every other victim stands outside the rape law. 

This is the gap that a Delhi advocate, Shubhi Srivastava, has spent the better part of a year trying to force the courts to confront. And the Delhi High Court has now agreed to let her try. The court has permitted her and her co-petitioners to file a comprehensive petition covering the full range of people the rape law leaves unprotected. It is a small procedural step. But it opens the door to one of the more uncomfortable questions India's flagship criminal law reform has produced: why, in 2026, does the country's rape law still recognise only one kind of victim.

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How the gap opened

To understand how the country arrived here, you have to go back to July 2024, when the government retired the Indian Penal Code, the 164-year-old spine of Indian criminal law, and replaced it with the Bharatiya Nyaya Sanhita, the BNS. The change was sold as a decolonising overhaul, a modern code for a modern republic. In the shuffle, one old provision quietly disappeared and was never replaced. That provision was Section 377.

Section 377 has a bad name, and it deserves part of it. For most of its life it was a colonial weapon used to treat gay people as criminals. Two consenting adults could be threatened with prison simply for their relationship, and the police used the section to harass, blackmail and shame gay people. That is the Section 377 most people remember, and its reading down in 2018 was rightly celebrated as a victory for dignity and privacy.

But that is only half the story, and the forgotten half is the one that matters here. When the Supreme Court delivered its landmark 2018 judgment in Navtej Singh Johar, it did not erase Section 377. It removed only the part that criminalised consenting adults. It deliberately kept the rest of the section alive to deal with sexual acts done without consent. After 2018, Section 377 quietly became the only law that could reach the rape of an adult man, the sexual assault of a transgender person, and bestiality, the abuse of an animal.

India's rape law has never recognised anyone but a woman as a victim. Rape was defined in Section 375 under the old Indian Penal Code, and it is defined in Section 63 under the BNS, but in both, rape is something only a man can commit and only a woman can suffer. That is precisely why Section 377 mattered so much. It was the one provision broad enough to reach the victims the rape law refused to see: adult men, transgender persons and, in cases of bestiality, animals. 

When the BNS came into force and let Section 377 lapse, that shelter vanished. Nothing in the new code took its place. The result is a criminal law that celebrates its own modernity while leaving a hole where the protection of male and transgender victims used to be.

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BNS Section 63, and who it forgets

At the centre of the dispute sits Section 63 of the BNS. This is the provision that defines rape, and it is the successor to the old Section 375 of the IPC. Read it closely and the design is unmistakable. It describes rape entirely as something "a man" does to "a woman." The BNS then defines a man as a male human being of any age and a woman as a female human being of any age. Put those pieces together and the conclusion is stark. Under the BNS, rape is, by definition, a crime a man commits against a woman, and no one else can be the victim.

India's rape law does say only a woman can be a victim. It is important to be precise about what that means and what it does not. It does not mean a man or a transgender person who is sexually assaulted has no recourse to any law at all. Depending on the facts, lesser offences such as assault, causing hurt or the use of criminal force may still apply. But those are weaker charges, they carry lighter punishment, and crucially, none of them recognise the act as rape. The same violation is rape when the victim is a woman, and something smaller, or nothing, when the victim is not. That distinction is the heart of this story.

Shubhi Srivastava's case is that this cannot survive the Constitution. Her petition argues that Section 63 and a cluster of related BNS provisions, fourteen sexual-offence sections in all, covering rape, aggravated rape, gang rape, sexual harassment, voyeurism and stalking, are discriminatory because they protect women and abandon everyone else. She invokes Articles 14, 15 and 21, the constitutional guarantees of equality, non-discrimination and dignity. Her demand is not that women lose protection. It is that the same protection be extended so that men, transgender persons and, because Section 377 also covered it, animals, are not left outside the rape law.

What set it in motion

The origin of the petition, according to the family that drove it, was not an abstract reading of the statute book. It came from the ground, from the police themselves.

Shubhi's father and co-counsel, S.K. Srivastava, a retired officer of the Indian Revenue Service turned litigant, describes the moment the problem became impossible to ignore.

"As lawyers, we interact a great deal with police officials. During those interactions, the police themselves came to us and said, please do something. They brought an SHO to me and we had a long discussion. What he told me was simple. Whenever there is a case against a man or a third gender, the police are unable to register it. That is what triggered this petition."

It is a striking claim where the people meant to enforce the law are saying the law gives them nothing to enforce. A station house officer, faced with a male or transgender victim of sexual violence, has no offence of rape to record, because the rape law does not admit that such a victim can exist.

The family's second argument goes to the harder question, the one that sank their first attempt in court. When Srivastava's group first filed in October 2025, the High Court pointed out that granting their prayers would mean the court ordering Parliament to write a new law, something courts are not supposed to do. They withdrew. Their answer this time is more careful. They are asking the court to direct the government to act.

S.K. Srivastava states, "Parliament is a sovereign body and it decides what to legislate and what not to. But Parliament does not have the machinery to sense what the public actually needs. That is the job of the government, to gather these critical insights and place them before Parliament in the form of a bill. We are putting the onus on the government. We are not saying you did this deliberately. But those who drafted this law had a vision so narrow that for them rape is always in the man-woman construct, where the woman is the victim. I want the court to direct the government to look into the matter and initiate corrective measures, if necessary by going back to Parliament."

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Three petitions, one hole

Srivastava's is not the only voice raising this alarm. In a matter of weeks in October 2025, the Delhi High Court found itself holding three separate challenges, all circling the same gap in the BNS. 

The first was filed by Dr Chandresh Jain, a Delhi advocate and human rights activist. His petition is narrower and, in tone, the most sympathetic of the three. It is concerned specifically with transgender persons, who he argues have been rendered legally invisible. Jain's case is that the law which is supposed to protect them, Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, is close to useless, because it bundles every offence against a transgender person into a single clause with a maximum sentence of just two years, whatever the gravity.

A transgender rape survivor's attacker, in other words, faces a fraction of the punishment that a woman's attacker would. Jain asks the court to read the BNS and other laws inclusively, so that transgender victims are recognised, rather than to strike anything down. His targets are the central ministries, Home, Law and Justice, and Social Justice and Empowerment.

The second petition was filed by Barkha Nagar, also a Delhi advocate, on 14 October 2025. Her petition goes straight at the definition itself. She asks the court to declare Section 63 of the BNS unconstitutional for violating Articles 14, 19 and 21, on the ground that a rape law which recognises only women as victims is arbitrary and discriminatory. Her petition argues, powerfully, that adult men, transgender and non-binary people are left without protection the moment they cross the age of eighteen, since the child-protection law is already gender-neutral but the adult rape law is not.

Yet there is a crucial catch in the Barkha Nagar petition, and it is worth spelling out because it explains why a third, broader case was thought necessary. Her arguments call for a gender-neutral rape law. But her formal prayer, the specific relief she actually asks the court to grant, asks only for one thing: that Section 63 be struck down as unconstitutional. It does not ask for a replacement law to be framed in its place. That omission matters enormously. A court that granted only what she formally sought would remove the definition of rape and leave nothing behind. In trying to widen the rape law, the prayer as drafted risks knocking out the one protection that already exists, and leaving a far larger vacuum than the one it set out to fix.

It is this landscape, one petition confined to transgender persons, another that could accidentally hollow out the rape law altogether, that Srivastava's group points to in arguing that neither existing case covers the full problem. Their pitch is that the answer must add protection rather than subtract it. In their language, the goal is positive equality, not negative equality. You do not achieve fairness, they argue, by taking the rape law away from women. You achieve it by extending the rape law to everyone else.

What the court has now allowed

For months, Srivastava's group was stuck between two bad options: join a petition they thought too narrow, or walk away from the fight altogether. So in July 2026 they went back to the same court and asked for something more ambitious: permission to file a fresh, comprehensive petition of their own, one that would gather every affected class, men, women, transgender persons and animals, into a single challenge.

The Delhi High Court has now granted that permission. It has agreed that the comprehensive petition can be filed. Essentially, the court has simply cleared the way for the fullest version of the challenge to be brought and heard. The real contest, over whether India's rape law can continue to see only one kind of victim, is still to come. But the door is now open, and that alone changes the story.

The BNS was meant to be India's confident break from its colonial past. Instead, in retiring a colonial law without reading it fully, the drafters of the BNS may have taken away a protection they never meant to touch, and left behind a rape law that, for a large part of the population, offers no protection at all. Whether the courts can repair what Parliament left undone is the question the coming months will answer.