Ex-CJI Lalit: New Penal Code Creates a Dangerous Legal Void for Male Sexual Assault Victims

New Delhi – In a sharp critique of the newly enacted Bharatiya Nyaya Sanhita, 2023 (BNS), former Chief Justice of India, U.U. Lalit, has identified a significant legislative gap that leaves adult male victims of sexual assault without legal recourse. Speaking at a lecture organized by the Supreme Court Bar Association, Justice Lalit argued that the BNS missed an "ideal opportunity" to make the offence of rape gender-neutral, a failure compounded by the complete removal of Section 377 of the Indian Penal Code (IPC).

The lecture, titled “BNS 2023 and IPC 1860: Continuity, Change and Challenges,” provided a platform for the former CJI to dissect the nuances of India's new penal code. While he lauded several progressive, gender-neutral amendments in the BNS, he expressed grave concern over the creation of a legal vacuum for a vulnerable segment of the population.

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The Double-Edged Sword: Repealing Section 377 and Retaining Gendered Rape Laws

At the heart of Justice Lalit's critique lies the interplay between two major changes in the BNS: the omission of a provision equivalent to Section 377 IPC and the retention of a female-centric definition of rape.

Section 377 IPC, which criminalized “carnal intercourse against the order of nature,” was a colonial-era provision controversially used to prosecute consensual same-sex relations. Historic Supreme Court judgments, most notably Navtej Singh Johar v. Union of India , read down the section to decriminalize consensual acts between adults. However, the provision still offered a legal window, albeit an imperfect one, to prosecute non-consensual sexual acts against men, as well as bestiality.

The BNS has dropped the provision entirely. Justice Lalit argued that while this move aligns with judicial precedent on consensual acts, its combination with a non-gender-neutral rape law creates an alarming void. He posed a critical question to the legal community: what happens now when an adult man is subjected to sexual assault without his consent?

“Now, what if the one adult is actually sort of subjected to it forcibly and without his consent?…So therefore you have not only lost that opportunity of making it gender neutral... but you have also dropped 377, which means that if a man without his consent is subjected to that kind of offence, then today where is the window to ventilate the grievance? There is none. And that to my mind is completely an incorrect idea,” he asserted.

He stressed that while the Protection of Children from Sexual Offences (POCSO) Act provides robust, gender-neutral protection for male victims under the age of 18, there is now no corresponding provision for adult men. Using a powerful metaphor to describe the legislative oversight, he remarked, “We have not only thrown the baby along with the bathwater, we have thrown the baby as well.”

A Missed Legislative Opportunity Rooted in History

Justice Lalit contextualized his criticism by revisiting the landmark legal reforms following the 2012 Delhi gang rape case. He recalled that the Justice J.S. Verma Committee, constituted to recommend amendments to criminal law, had proposed a gender-neutral definition of sexual assault. This recommendation was briefly implemented through an ordinance in February 2013, which expanded the scope of Section 375 IPC to cover male victims.

“Now imagine that scenario with gender neutrality. What would be the situation if a male child was subjected to gang sexual abuse? The same principle would apply and same sentence would follow,” he explained, highlighting the protective potential of such a framework.

However, the subsequent Criminal Law (Amendment) Act, 2013, reverted the definition of rape to its earlier form: an offence committed by a man against a woman. Justice Lalit expressed his disappointment that the BNS, a comprehensive overhaul of the country's penal laws, did not seize the chance to correct this. “I thought that this (BNS) would be an ideal opportunity for the legislature to make it gender neutral,” he said.

Praise for Inconsistent Progress: Where BNS Gets it Right

Despite his strong critique of the rape provisions, Justice Lalit commended the BNS for introducing gender neutrality in several other offences, which he noted makes the omission in the rape law all the more conspicuous.

He highlighted key improvements:

• Procuring a Child (Section 96 BNS): The new provision replaces Section 366A of the IPC, which specifically criminalized procuring a “minor girl.” The BNS uses the gender-neutral term “child,” thereby extending protection to male children procured for prostitution or other illicit activities.
• Selling and Buying Minors for Prostitution (Sections 98 & 99 BNS): The BNS retains the gender-neutral wording from the corresponding IPC Sections 372 and 373, a move Justice Lalit welcomed.
• Gender-Neutral Accused: The BNS makes certain offences, introduced post-2013, gender-neutral with respect to the accused. The provisions corresponding to intent to disrobe (formerly Section 354B IPC) and voyeurism (formerly Section 354C IPC) now allow for the prosecution of women as perpetrators. “That is also a welcome idea,” he remarked.

This selective application of gender-neutral principles, however, underscores the central inconsistency in the BNS's drafting. While the legislature demonstrated an ability to modernize and expand the scope of certain laws, it stopped short at the most critical one concerning sexual assault, creating a hierarchy of victim protection.

Legal and Societal Implications

The gap identified by Justice Lalit is not merely academic; it has profound implications for the justice system and societal perceptions of sexual violence. For legal practitioners, it presents a significant challenge in seeking justice for male survivors of sexual assault. Without a specific penal provision, lawyers may be forced to rely on broader, less applicable sections related to assault or hurt, which fail to capture the gravity and nature of a sexual offence and carry much lighter penalties.

This legislative lacuna could trigger constitutional challenges, with petitioners potentially arguing that the BNS violates the right to equality under Article 14 and the right to life and personal dignity under Article 21 by denying equal protection to victims based on gender.

Ultimately, Justice Lalit's analysis serves as a critical call to action for the legislature to reconsider and amend the BNS. He concluded that, "except for this gap, everything seems to be going in the right direction in BNS," framing the issue as a correctable but severe flaw in an otherwise progressive piece of legislation. His intervention ensures that the debate over gender-neutral laws will remain at the forefront of legal discourse as India transitions to its new criminal justice framework.