Open Access Research Article

GENDER-NEUTRAL SEXUAL OFFENCES UNDER THE BHARATIYA NYAYA SANHITA: CLOSING THE POST-SECTION 377 GAP

Author(s):
AKSHAT PANDEY SREEKAR POTARAJU
Journal IJLRA
ISSN 2582-6433
Access Open Access
Volume 3
Issue 6
DOI https://www.doi-ds.org/doilink/09.2026-34186731/GENDER-NEUTRAL SEXUAL OFFENCES UNDER THE BHARATIYA
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Abstract

ABSTRACT
The Bharatiya Nyaya Sanhita 2023 ("BNS") replaced the Indian Penal Code 1860 as India's general criminal code, yet its central sexual-offence provision, section 63, retains the male-perpetrator/female-victim formulation inherited from section 375 of the former Code. This continuity became more consequential once the BNS repealed section 377 IPC, the provision that after being read down in Navtej Singh Johar v Union of India had continued to supply residual coverage for certain non-consensual penetrative sexual conduct falling outside the rape provision. The repeal, without a clearly equivalent general offence, leaves adult male victims and transgender victims whose cases cannot readily be brought within the statutory term "woman" outside the rape-specific framework of legal classification, sentencing, and evidentiary treatment under sections 63–64 and section 120 of the Bharatiya Sakshya Adhiniyam 2023. This article argues that the resulting gap is not merely terminological: it affects how the criminal law recognises the harm of non-consensual penetration itself. Drawing on the legislative history of India's rape law, constitutional principles of equality, dignity and sexual autonomy under Articles 14, 15 and 21, and comparative models from Canada's graded sexual-assault framework and the United Kingdom's gender-neutral victim category under the Sexual Offences Act 2003, the article contends that gender neutrality in the core penetrative offence is compatible with retaining gender-sensitive aggravated protections. It proposes a targeted, consent-based amendment to section 63, together with consequential changes to sentencing and evidentiary provisions, as a workable route to closing the post-section 377 protection gap without disturbing the constitutional gains secured in Navtej.

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Author Details

Authors: AKSHAT PANDEY & SREEKAR POTARAJU
Registration ID: 1013149 | Published Paper ID: IJLRA13149 & IJLRA13150
Year: Sep-2026 | Volume: 3 | Issue: 6
Approved ISSN: 2582-6433 | Country: Delhi, India
Page No.: 737-751

Article Information

GENDER-NEUTRAL SEXUAL OFFENCES UNDER THE BHARATIYA NYAYA SANHITA: CLOSING THE POST-SECTION 377 GAP

Authors: AKSHAT PANDEY, SREEKAR POTARAJU

  • Journal IJLRA
  • ISSN 2582-6433
  • Volume 3
  • Issue 6
Citation Download Paper Full Details Search on Google Search on Google Scholar

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International Journal for Legal Research and Analysis

  • AbbreviationIJLRA
  • ISSN2582-6433
  • AccessOpen Access
  • LicenseCC 4.0

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