BNS Rape Law: What If the Victim Isn't a Woman?

Imagine a man walks into a police station because he has been raped. He asks the officer to register an FIR. And the officer tells him there is nothing he can do, because the BNS has no provision to register the rape of a man. Now imagine the same thing happening to a transgender person. The answer is the same. Under the law as it stands today, they have no recourse at all.

This is not a hypothetical. It is the reality created by the way the BNS defines the crime of rape. In our new explainer, we break down how India ended up here, what the law actually says, the petitions now before the Delhi High Court, and why, in 2026, the country still does not have a gender-neutral rape law.

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

What the BNS Rape Law Actually Says

The heart of the problem lies in Section 63 of the BNS, the provision that defines rape. It replaced the old Section 375 of the Indian Penal Code, and it lists the specific acts, penetration, insertion, manipulation and oral contact, that amount to rape. But it describes every one of those acts as something a man does to a woman.

The consequence is stark. The BNS rape law sees only a man as the perpetrator and only a woman as the victim. It does not recognise a woman, or any other gender, as a possible offender, and it does not recognise a man, a transgender person, or anyone else as a possible victim. So when the crime happens to anyone other than a woman, the rape law simply has no place for them.

To understand how a brand new code ended up this way, you have to go back. India's Indian Penal Code was enacted in 1860 and came into force in 1862, which is why it is called a colonial-era law. When the BNS replaced it on July 1, 2024, it was celebrated as a historic, modern reform. And that raises the obvious question. If the BNS is the modern law, why is its rape law narrower, in one crucial way, than the colonial code it replaced?

The answer lies in Section 377. That section has a dark reputation, because it was used for decades to criminalise homosexuality, until the Supreme Court rightly read it down in 2018. But Section 377 was doing two jobs. Alongside the part that was struck down, it carried a protective function: it was the one provision that could reach non-consensual acts against men and transgender persons. When the BNS dropped Section 377 entirely and put nothing in its place, that protection vanished, and the BNS rape law was left covering only women.

Also Read:  Delhi HC to Examine Why the BNS Rape Law Sees Only Women | Impact

The Petitions Before the Delhi High Court

Our explainer walks through the petitions now challenging this gap, because each one approaches it differently.

The first, by Dr Chandresh Jain, speaks for transgender persons. He argues that the BNS rape law is unconstitutional because it leaves transgender persons entirely outside its protection, framing rape and most sexual offences around a female victim.

The second, by Barkha Nagar, argues that Section 63 itself is unconstitutional for recognising only a man as the offender and a woman as the victim, leaving men, transgender and non-binary victims unprotected. But her petition carries a flaw we explain in the video: while her synopsis talks about corrective measures, her actual prayer asks only for Section 63 to be struck down, without saying what should replace it. Strike down the rape law with nothing in its place, and you create a different crisis.

The third petition is the comprehensive one, filed by Shubhi Srivastava, S.K. Srivastava and others. It does not speak for one group alone. It challenges fourteen sexual-offence provisions of the BNS and seeks to cover everyone the rape law forgets, men, women, transgender persons and even animals. The petitioners say they were moved to act after police officers themselves told them that men and transgender persons come to file rape complaints and simply cannot, because the BNS has no provision. We spoke to the lawyer who filed it, who described those conversations with a station house officer directly.

An earlier version of this comprehensive petition was dismissed, with the court noting it could not direct Parliament to legislate. But the petitioners persisted and filed a fresh, wider petition, and this one goes further still, raising even the question of necrophilia, the sexual violation of the dead, for which India currently has no clear provision. The petition notes that the UK criminalised it in 2003, and that even Pakistan amended its penal code in 2024.

Why India Needs a Gender-Neutral Rape Law

On August 12, this case came up before the Delhi High Court, which will now hear it on October 7. The court tagged the comprehensive petition with a related one filed by Gantavya Gulati, and the Gulati story is the most revealing part of the whole saga.

Gulati first approached the court in 2024, seeking to restore protection for individuals left exposed by the gap, particularly those from the LGBTQIA community. The government did not defend the gap. Instead, it asked that his petition be treated as a representation, promising to consult stakeholders and decide. The court agreed. But two years later, no decision has come. When Gulati returned, the government said only that the matter was sensitive and needed more time. The court, unpersuaded, held that a year and a half was reasonable time and revived his petition.

And this gap was not an accident. When the BNS was being drafted, Parliament's own Standing Committee on Home Affairs, headed by Brij Lal, warned in writing that dropping Section 377 would leave men, transgender persons and bestiality unpunished, and recommended keeping that protection. The government did not accept it.

The court is now in a genuine bind. It cannot write a law, that is Parliament's job. But it is equally bound to protect citizens' rights, and the government's two years of inaction give it room to press for answers. At most, on October 7, the court can demand the government explain its delay and set out how it will fix the BNS rape law.

The rest of the world offers a clear contrast. Canada made its rape law gender-neutral in 1983. The UK's Sexual Offences Act of 2003 protects victims of either sex. Australia and South Africa have done the same.

The question our explainer leaves you with is simple. If a woman is raped, it is a crime. If a man or a transgender person is raped, the BNS rape law does not even call it rape. That cannot be right. Rape is rape, and a law that protects some victims while abandoning others is not just incomplete. It is unjust.