Left in lurch 

In March this year, Rohin Bhatt, a lawyer and author, spoke with queerbeat on a video call. They were sitting in the drawing room of their Delhi apartment that doubles up as their chamber for consultations with clients. Behind them was a white wall adorned with pictures—each of them bordered by thick black frames, which, in their aesthetics, resembled Rohin’s spectacles.

Less than a minute after our conversation started, Rohin paused, stepped out of the frame, and returned with a copy of the BNS. They then took us through the different Sections of the 102-page document.

Sections 63 and 64 deal with rape. And only a woman—“a female human being of any age”—can be the victim of a rape. Although the sections do not specifically include trans people, according to Rohin, a trans woman can also fall under the definition of a woman “provided she is certified as a woman.” That means they must have a certificate and identity card issued by the Indian government recognising their gender as a transgender woman. 

‍queerbeat could not find official data on the number of trans women who had been issued these documents. However, the National Portal for Transgender Persons reports that 26,000 trans people have been issued a certificate and identity card from the 30,000 who applied for these so far. As per the 2011 census, there are 487,803 transgender people in India—which is an undercount at this point since the data is a decade and a half old. That means, only about five percent of India’s transgender population can legally claim to be transgender.

Even if a trans woman were to have the documents, it is possible that a judge could disagree with Rohin’s reading of the law. In a 2024 judgement, the Himachal Pradesh High Court stated that “transgenders [people] could not claim themselves to be male or female as they were given separate identity [in the BNS],” SCC Times reported. 

There are no cases yet where a transgender woman has filed a rape complaint under the Section 63 and 64 of the BNS, said Rohin. The 2024 judgement by the Himachal Pradesh High Court was in a case where a transgender woman had invoked Section 69 of the BNS, i.e., the section that deals with “sexual intercourse by employing deceitful means.” While the court recognised that “the offence alleged to have been committed by the accused was of heinous nature,” it granted bail to the accused. 

“This has not set a good precedent,” Tripti Tandon, a lawyer practising in the Supreme Court and associated with the Lawyer’s Collective, a New Delhi-based NGO that provides legal aid to marginalised communities, told queerbeat. Tripti was one of the lawyers who argued for the decriminalisation of consensual same-sex sexual activity in 2018 at the Supreme Court.

When it comes to transgender men, both Tripti and Rohin said that they are not aware of any cases where transgender men have filed sexual assault or rape cases—either under the BNS’ provisions or those of the older IPC. In absence of examples, one can only speculate on how the law would deal with such a case. Transgender men who possess official documents certifying them as men could technically fall outside the category of the victim, as per the BNS.

If they don’t have the documents—and assuming the trans men have not undergone medical transition—they could theoretically use their assigned-female-at-birth status to file rape complaints, said Tripti. This would, however, come at the cost of misrepresenting their gender identity. Although this might be a legal workaround, “having to constantly go back to their sex assigned at birth and a gender that they have rejected [i.e., woman] could be quite traumatising for them,” Tripti added. Rohin agreed.

“This is why transmasculine people typically do not approach the police when they are molested, sexually assaulted, or raped,” said Satvik Sharma, a Delhi-based trans man. Satvik is a co-founder of the Misfyt Foundation, a Delhi-based NGO that advocates for the inclusion of transgender persons in the workforce. Satvik said he has heard many accounts of trans men facing sexual violence but none of them resulted in FIRs or court cases. “The survivors typically pack up their lives and shift to a different place, hoping to leave behind the trauma and start a new life afresh,” Satvik told queerbeat. 

For women who are sexually assaulted by other women—that’s not even a crime since the BNS only recognises men as perpetrators. When the post-2018 version of Section 377 was in place, at least cases of sexual assault that involved penetrative sex acts using fingers or other objects by a woman could be redressed. 

Rohin pointed out that women facing marital rape have also been impacted by the BNS’ deletion of Section 377. “Wives would file an FIR in cases of marital rape using Section 377,” they said. Neither the erstwhile IPC nor the BNS recognise marital rape as a crime, but if a married woman was subjected to oral or anal rape by her husband, it would have fallen into the purview of “carnal intercourse against the order of nature” mentioned in Section 377.

Courts are, however, divided on this issue. While the High Courts of Madhya Pradesh, Uttarakhand and Chhattisgarh did not allow the use of Section 377 in cases of marital rape, the Karnataka High Court has upheld—in one case—the invocation of Section 377 by a woman who was forced to have “unnatural anal sex, oral sex” by her husband. This case is being contested in the Supreme Court, which is yet to deliver its verdict.

In short, barring rape against a woman by a man who is not her husband, the new criminal law is blind to sexual violence against many other identities. In most cases, the BNS makes it totally legal, and in others, it forces victims to rely on weaker laws. All the activists, scholars, and lawyers queerbeat spoke to agree that this is unjust. But most of them also agree that making the rape laws gender-neutral is probably not a good solution. 

To understand why, we need to look at the history. 

‍How did we get here? 

26 March 1972. Mathura, a 16-year-old Adivasi girl was raped by Ganpat, an intoxicated constable inside a police station in Gadchiroli district, Maharashtra. Head constable Tukaram was too intoxicated to rape her, but he did touch her and remarked “achhi hai” [she is good], Mathura recounted to The Print fifty years after the incident.

Initially, in 1974, a sessions court acquitted the two constables, citing that Mathura was a “shocking liar.” However, when the case caught the attention of feminist activist Seema Sakhare, she filed a petition in the Bombay High Court. In 1976, the court set aside the initial judgement and sentenced Tukaram to one and Ganpat to five years of prison time. Two years later, the Supreme Court reversed the High Court’s judgement, stating that while sexual intercourse did happen, the evidence for it being a case of rape was unsatisfactory. The constables were acquitted once again. 

This infuriated women’s groups, who started mobilising against the decision in different regions of the country. Their representatives met in Mumbai for a national conference in 1980 where they protested the judgement, deliberated on how to define consent, and advocated for separate—and stricter—laws against custodial and marital rape.

(Custodial rape refers to a situation in which the perpetrator is in a ‘custodial position,’ i.e., someone is in charge of the wellbeing of the victim. For example, a police officer, a public servant, or a member of the managerial staff of a jail, remand home, or hospital.)

One of the attendees of the conference was Chayanika Shah, a queer feminist activist and physicist, who was 21 years old then. Chayanika, who is now 66, recalled that the deliberations at the conference focused on cisgender heterosexual women as victims of rape and cisgender heterosexual men as perpetrators. The activism of these women’s rights groups led to amendments in the criminal law. The Criminal Law (Amendment) Act, 1983 mandated that a rape survivor’s identity should be kept confidential, and recognised custodial rape as a separate offence with 10 years’ imprisonment.

Things evolved further in the 1990s, Chayanika told queerbeat, when an increasing number child sexual abuse cases—involving boys and girls—began to make it to  courts across the country. In response, some feminist and child rights groups began advocating for a separate law dealing with child sexual abuse. 

Meanwhile, in 1994, the AIDS Bhedbhav Virodhi Andolan (ABVA), a Delhi-based NGO, filed a petition in the Delhi High Court, asking that the Section 377 that criminalised same sex sexual activity be declared unconstitutional. ABVA’s petition, and their report titled Less Than Gay, compiled several instances of sexual assault and extortion faced by queer men. It was no longer possible to deny that—like children and adult cis heterosexual women—adult queer men too were highly vulnerable to sexual violence. 

The timely convergence of all these developments in the late 1990s led a few women’s and child-rights groups to suggest—perhaps for the first time—that India’s rape laws should be rewritten to be gender-neutral.

The groups included Delhi-based NGOs Sakshi, Interventions for Support Healing and Awareness (IFSHA) and the All India Democratic Women’s Association (AIDWA). 

***

In 1997, Sakshi filed a case in the Supreme Court demanding changes to India’s rape laws—gender-neutrality being prominent among them. The court’s final order in the case in 2004 did not accede to the petitioner’s demands, holding that such substantial changes could only come from the legislature. However, its 1999 interim order in the same case had set the ball rolling. Intense debates began on whether India’s rape laws should be gender neutral. 

The 1999 order had instructed the Law Commission of India (LCI) to review the existing rape laws and submit its recommendations. The LCI’s review and consultations resulted in a March 2000 report that recommended various changes to India’s rape laws—the most significant of these were replacing the term ‘rape’ with ‘sexual assault,’ expanding the scope of what constituted sexual assault, and making the crime gender-neutral.

Partly, the demand for gender-neutrality in rape laws followed the trends in the global north, Vrinda Grover, a New Delhi-based lawyer and women’s rights activist, told queerbeat. By the time the LCI report was published, countries such as Canada, Germany and the Netherlands had either amended existing laws to be gender-neutral or enacted new sexual assault laws.

The LCI report kicked up a storm. Feminist legal scholars in India and abroad strongly critiqued the LCI report. Flavia Agnes, a lawyer who works on women’s rights, said following the western trend of gender-neutral rape laws would be akin to “mindlessly aping the mistakes committed by western feminists”. To the critics of the report, gender-neutrality was not gender just, at least not in the Indian context.

Kirti Singh, lawyer, activist, and AIDWA’s legal advisor for over forty years, was a part of the LCI consultations. Kirti, 71-years-old now, recollects that as soon as the report came out, other women’s rights groups, such as New Delhi-based Saheli, opposed the gender-neutrality recommendation. 

They were joined by queer and transgender rights groups that felt, based on a summary of the meetings present on Saheli’s website, that a gender-neutral law that acknowledges same-sex violence may not help queer and trans people until consensual same-sex sexual activity—which was still a criminal offense under Section 377—was decriminalised. They felt that the demand for decriminalisation should precede any advocacy for changing rape laws. Once decriminalisation was achieved, Section 377 could be deployed for the purpose of providing justice to queer and trans survivors of sexual violence. 

What followed was a series of meetings between various Delhi-based groups in Kirti’s office at Jangpura Extension, New Delhi. By November 2001, they had reached a consensus: that laws against sexual assault and rape “should not be gender-neutral, but gender-specific.” In Kirti’s words, “we [AIDWA] changed our stance.” 

Gender specific laws mean that there should be separate laws that address sexual violence faced by people of different genders instead of one gender-neutral law.

A month later, in December 2001, women’s, child, and queer rights groups from all over the country met in Mumbai to discuss the next course of action. In January 2002, 38 of these groups wrote to the then Law Minister, Arun Jaitley. While appreciating the LCI report for expanding the definition of sexual assault and recognising child sexual abuse, they opposed gender-neutrality of the rape laws.

“...rape is a gendered crime and is an indication of men’s power over women and their bodies. Hence, we strongly oppose gender-neutrality that seemingly equates women and men,” they wrote. They also demanded a separate law dealing with child sexual abuse and rights for queer and transgender individuals. 

However, a few groups kept the demand for gender-neutral rape laws alive. Leading one such group was Anil Murty, the co-founder of the Save India Family Foundation (SIFF), one of India’s most visible men’s rights organisations. 

When queerbeat spoke to him in March, he was in Münich, Germany, attending a global “men’s rights get-together.” According to Anil, SIFF started when some of its founders had “false cases” lodged against them by their wives. SIFF’s activism has largely centered around the laws against domestic violence, dowry, and—per queerbeat’s estimation from the articles published on their website, to a somewhat lesser extent—rape. SIFF argues that these laws unfairly discriminate against men and make them vulnerable to “false cases” by women. The organisation has repeatedly demanded that these laws, including the rape laws, be made gender-neutral. 

In July 2012, a decade after the law commission published its report, the Congress-led UPA government proposed the Criminal Law (Amendment) Bill, which incorporated many of the changes suggested by the LCI report, including the proposal to make sexual assault a gender-neutral crime.

Once again, this led to an instant backlash from women’s-rights groups. But before the bill could become law, a heinous incident in Delhi catapulted the issue into a frenzied national conversation. On 16 December 2012, a female physiotherapy intern was brutally gangraped and murdered by four men. Protests in the wake of what came to be known as the “Nirbhaya case” compelled the government to constitute a committee under the leadership of former chief justice of India JS Verma to review India’s rape laws—as well as the 2012 Bill.

The JS Verma Committee’s recommendations, published in January 2013, were comprehensive. The committee suggested sweeping reforms that affected police and judicial procedures, electoral norms, educational curricula, and even the powers of the armed forces—with the aim of holistically tackling the epidemic of sexual violence in India. 

The committee recognised the reality of sexual assault against gay and trans people. It suggested that the rape laws be revised to make the victim’s identity gender-neutral. That is, a person of any gender would be able to file a complaint of rape by men. This would allow almost everyone except queer women and cishet men who have been sexually assaulted by women, to seek justice.

In February 2013, the parliament of India passed the Criminal Law (Amendment) Ordinance, enacting many of the JS Verma Committee’s recommendations. But instead of making the law gender-neutral only for the victim, the ordinance introduced “blanket gender-neutrality”—i.e., where both the victim and the perpetrator of sexual violence could be of any gender. As expected, women’s rights groups upped the ante against it. In a press release issued in response, they pointed out, again, that blanket gender-neutrality “makes a mockery” of the “deeply entrenched power inequalities between men and women” in our society. 

“We were worried that this is going to boomerang,” said Chayanika. They feared that making the identity of the perpetrator in the rape laws gender-neutral could open the gates to counter-complaints of rape by male perpetrators seeking to silence female victims. 

In response to the backlash, the government blinked. Two months later, the rape laws were reverted. Once again, women could only be victims or survivors of rape, and only men could be perpetrators.

‍Power imbalance 

Since India’s rape laws are not gender-neutral, it is almost impossible to confirm whether men accused of raping a woman would file counter-complaints of rape. 

However, what is clear is that men retaliate when women pursue cases involving gendered violence. And this retaliation often does comes in the form of counter-complaints—not of rape, but of defamation. For example, earlier this year when a woman alleged that Lakshman Sit, a Trinamool Congress leader and the head of the Makrampur Panchayat in West Bengal, raped her in the party office, Sit filed a defamation case against her the next day.

Similarly, Chayanika told queerbeat, such retaliations by men are common at workplaces when women file sexual harassment complaints. “I am dealing with cases where two men have threatened the complainants with defamation and torture,” said Chayanika, who is a member of committees for the prevention of sexual harassment at several institutions. 

Mihir, the Delhi-based lawyer, agrees with Chayanika. He said he has seen cases where the accused—especially if they are in senior positions—often retaliate by influencing the organisation to terminate the complainant’s employment. This “confirms the concerns of the feminist movement,” that making rape laws gender-neutral could increase the retaliatory cases, Mihir told queerbeat. 

Although the Sexual Harassment at Workplace Act 2013 allows only women to file harassment complaints—against perpetrators of any gender—some companies and institutions have put in place internal gender-neutral policies against sexual harassment. Chayanika said that in such organisations that she is familiar with, she has not seen many cases of counter complaints of sexual harassment by men against women complainants. That is perhaps because, she added, the other forms of retaliation mentioned above are more prevalent.

While the threat of counter-complaints cannot be ignored, “it isn’t reason enough to deny cis-het men, and queer and transgender people protection [against sexual violence],” said Vrinda Grover, the New Delhi-based lawyer and women’s rights activist.  “Every law can be misused; what can we do?” But the protection “will not come by changing ‘woman’ and ‘man’ [in the rape laws] to ‘person’,” she added.

Even as women’s rights activists remain steadfastly opposed to gender-neutral rape laws, according to Chayanika, they have been consulting with queer and trans rights groups to look for legal alternatives that could protect queer folks against sexual violence. One proposed concession that emerged from these conversations was for the law to be made gender-neutral in cases of custodial rape alone. 

The conversation on gender-neutral rape laws shifted a little in 2018 when consensual adult homosexuality was decriminalised. Many women’s rights groups took the position that Section 377 could be used by gay people to seek recourse in cases of rape. But that position was valid only until July 2024, when the new criminal code, BNS came into force, shorn of Section 377.

***

In the absence of laws recognising them as potential victims of rape, queer and transgender people will need to turn to other sections in the BNS—particularly those that concern physical assault: “voluntarily causing hurt”, “wrongful restraint,” “wrongful confinement,” “criminal force,” and “assault.” Pursuing justice through these sections, raises three problems.

One, as both Mihir and Rohin pointed out, is that these sections obscure the fact that the violence involved coercing someone into non-consensual sex. The distinction between sexual and non-sexual violence matters: survivors of sexual violence have lower self-esteem, higher self-criticism, and more anxiety as compared to survivors of non-sexual violence, according to 2022 study. Further, Mihir said that when queer and transgender victims of sexual assault attempt to file FIRs under the physical assault laws, the police often force them to forego narrating the details of the sexual assault. “They tell people ‘Don’t say it; there is no remedy for it’,” Mihir told queerbeat. 

When such narrations of sexual assault fail to make it to legal records, the legal system continues to not see queer and transgender persons as potential victims of sexual assault. Why does this matter? “When you can’t see a problem, you pretty much can’t solve it,” argues Kimberlé Crenshaw, a professor of law at the Columbia Law School. 

The second problem is that these laws mandate much lesser punishments compared to the rape laws. For example, the punishment for physical assault is a mere three months of imprisonment with a fine. Causing hurt—i.e., “bodily pain, disease or infirmity”—can invite punishments between one to ten years along with a fine. Only in cases of “grievous hurt”—where the victim suffers permanent disability—or if hurt is caused for the purpose of extortion, can the perpetrator be liable for life imprisonment. In contrast, the BNS mandates a minimum of ten years of imprisonment, potentially extending up to imprisonment for life, along with a fine.

“As someone who gets calls [from queer people] every week with someone saying ‘I’ve been [sexually] assaulted’ or ‘I’ve been raped’, it is very difficult for me to tell them to file [a case] for a lesser offense,” Rohin lamented. And convincing police officers to file FIRs for grievous hurt in such cases is often an uphill battle, they added. 

The third problem is that “there are a number of procedures that kick in after rape complaints are filed [by women],” said Mihir. “None of those are available under these general offenses sections.” For example, when a woman files a rape complaint, she is entitled to free emergency medical care and the investigators are prohibited from questioning her about her sexual history.

In Mihir’s words, “the general offenses [sections in the BNS] are not really a replacement for sexual offenses [sections in the BNS].” Tripti, the New Delhi-based lawyer, agreed. “It is not a viable remedy,” she said.

***

As the debates around making the rape laws gender-neutral continue, Chayanika, Rohin and Mihir, agree that at least the victim’s identity can be made gender-neutral in the laws—what the JS Verma Committee had recommended in 2013. 

But even extending gender-neutrality just to the victim “will not take [us] very far,” believes Vrinda. It sets up a “false alternative,” suggesting that gender-neutral rape laws alone can provide protection to queer and transgender people and cis-het men, she said. 

“Why can't there be standalone protections for [cis-het] men, and queer and transgender persons?” asked Vrinda. Effectively addressing sexual assault and rape against them requires not gender-neutral but gender-specific laws that “reflects the experiences of these communities,” said Vrinda. 

Tripti suggested another “narrow window”: amending the Transgender Persons’ (Protection of Rights) Act to clearly define rape and sexual assault, and make the punishment equal with that of the rape laws in the BNS. This might be easier than getting the government to amend the BNS, she believes.

(The Transgender Persons’ Act currently mentions “sexual abuse”, but does not define what it constitutes. It also does not mention rape or sexual assault.)

Another concern continues to loom: having the right to file a rape complaint is only the first step in seeking justice for sexual assault. What follows is even more arduous: police investigations, medical procedures, and court hearings. It is not uncommon for rape survivors to face multiple bureaucratic challenges with a dose of moral judgement as they walk the path of seeking justice. 

Although the “two finger test” which was used commonly as evidence to declare a woman “habituated to sexual intercourse” got banned in 2013, reports indicate that not only was the practice common until 2022, but medical examiners’ verdicts from the tests were used to dismiss rape survivors’ claims. 

Chayanika is worried that such scrutiny of one’s ‘character’ and sexual life might be heightened for queer and transgender people because they are already misjudged as hypersexual, promiscuous beings. The scrutiny might be far worse for many trans women who have to take to sex work to earn their living. This is why, Vrinda said, there should be “corresponding changes in the law of evidence and procedural law” that addresses the negative experiences of queer and transgender people with the police and the medical establishment. 

(‘Law of evidence’ refers to a set of principles that govern what is considered as valid proof of a crime, and how that should be presented to the court. ‘Procedural law’ refers to the processes that are followed in the case of a crime, including how complaints are investigated by the police, and how they are presented to and decided by the court.)

The police, medical system, and the judiciary need to be sensitised to the realities of transgender persons’ lives, added Satvik. This would mean expanding the very understanding of sex, sexuality, and sexual violence, beyond heterosexual penetrative sex acts.

“The creation of an offense is but a step in the larger schema of the justice delivery system,” said Rohin. 

The debate then is bigger. It is not only about whether rape laws should be gender-neutral or gender specific, but also about how to make systems that kick in after an act of rape more effective. Chayanika is of the opinion that advocacy to strengthen these systems and expand their ambit to queer and transgender survivors of rape should take precedence over changing rape laws. That requires a more organised and sustained conversation, which is not currently happening, according to multiple queer and feminist activists queerbeat interviewed. 

Chayanika is disappointed by the silence around how the BNS leaves queer and transgender people in the lurch. “Nobody is discussing this; women’s groups and queer rights groups are all keeping quiet and there is no large-scale mobilisation with demands,” she said. “Not because we are not concerned, but because we don’t know how to address this in the face of an unresponsive government.”

Arsalan, however, refuses to be silent. When New Delhi went to vote for its state government elections in February this year, Arsalan stood as an independent candidate from the Okhla constituency. Among other things, their manifesto stated their commitment to making rape and sexual assault laws gender-neutral. Although they lost the election, they plan to file a Public Interest Litigation (PIL) in the Supreme Court of India this year asking that the rape laws be made gender-neutral—with respect to both the victim and the perpetrator. 

While Arsalan’s path to justice for queer and transgender survivors of rape and sexual assault differ from those of the other women, queer, and transgender rights activists queerbeat spoke to, they all agree on one thing: the laws, as they stand, are unjust and it is high time we fix them.  

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Sudipta Das contributed reporting to the story. 

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