The BNS: A missed opportunity for gender inclusivity and LGBTQ+ rights

The Statement of Objects and Reasons of the Bharatiya Nyaya Sanhita Bill, 2023 (BNS)  articulates a commendable intention to make various offences gender-neutral and to increase the focus on offences against women and children. While this seems like a significant step towards promoting gender equality and inclusivity, the BNS miserably falls short of fulfilling this objective.

Despite the assertion within Clause 2 of the BNS, which seemingly advocates for the inclusive use of pronouns like “he” and its derivatives, a closer look reveals a contradiction when comparing it to the language in the old Indian Penal Code (IPC).

Take, for example, Clauses 75 and 76 within the BNS, which seek to replace Sections 354B and 354C of the IPC. The IPC, in its original form, routinely employed gendered language in its descriptions of various offences and the parties involved. Section 354B (use of criminal force to disrobe a woman) and 354C (Voyeurism) of the IPC explicitly specify the gender of the perpetrator as a man and the victim as a woman.

These clauses have undergone amendments to introduce gender-neutral language concerning the perpetrator, thereby removing gender specifications and permitting any gender to be recognised as the potential wrongdoer.

However, an incongruity persists – the gender of the victim remains rigidly specified as a woman. This partial shift towards gender neutrality in the BNS emphasises the shortcomings within the legislation.

However, the situation diverges when we scrutinise Clause 94 of the BNS, which replaces Section 366A of the IPC, addressing child procurement. Notably, this clause preserves a gender-neutral classification for offenders and extends the same gender neutrality to the victim. Conversely, Section 366A of the IPC, pertaining to child procurement, maintains a gender-neutral stance for offenders but explicitly designates the victim as a female child. In this instance, the BNS adopts a fully gender-neutral approach.

This inconsistency within the BNS raises questions about the coherence and intent behind the gender-neutral language changes. While Clauses 75 and 76 demonstrate a partial shift towards complete gender neutrality, Clause 94 takes a different approach, making both the offender and the victim gender-neutral. This variation in approach across different sections of the BNS suggests a lack of clear, uniform direction in achieving gender neutrality, as indicated by the Statement of Objects and Reasons.

Additionally, Chapter 5 of the BNS, which explicitly addresses offences against women and children, retains fully gendered language and persists in employing gender-specific nouns. For example, Clause 63, dealing with rape, utilises the pronoun “he” in conjunction with the noun “man.” Likewise, Clause 64, outlining punishment for rape, defines the victim as a woman.

Furthermore, while Clause 2 of the BNS states that pronouns like “he” are to be used inclusively, it does not extend this inclusivity to transgender individuals in any practical shape or form. In fact, the word “transgender” only makes an appearance in Clause 2 of the BNS as an “illustration”- with no mention anywhere else.

Members of the LGBTQ+ community find no mention anywhere in the BNS. The Transgender Persons (Protection of Rights) Act, 2019 represented the sole legislative initiative to codify the rights and entitlements of the transgender community, as recognised by a pivotal Supreme Court judgement in 2014 (National Legal Services Authority v Union of India). In a similar vein, the Supreme Court, in 2018, delivered another landmark ruling on gay rights through Navtej Singh Johar v Union of India. This ruling not only decriminalised consensual same-sex acts conducted in private but also underscored the State’s obligation to take appropriate measures for the progressive realisation of economic, social, and cultural rights.

The introduction of the BNS presented an excellent opportunity to align the principles established in the NALSA and Navtej judgments and to extend the scope of protections guaranteed to transgender individuals to include gay individuals as well.

For instance, the definition of rape under Clause 63 could have been broadened by simply modifying the term “woman” to encompass victims of any gender, thereby extending protection to transgender individuals who possess male/female sex organs, as well as men who have been victims of sexual assault by other men. Alternatively, the post-Navtej Section 377 of IPC, which criminalised bestiality, non-consensual sex between men, and other forms of ‘unnatural sex’ involving children, could have been retained with language modifications to explicitly include safeguards against sexual offences that affect LGBTQ+ individuals, animals, children, and others in ways not covered by the rest of the BNS. Such an amendment would not only have ensured the BNS’s true inclusivity concerning sexual violence faced by LGBTQ+ individuals and others but also remained faithful to the ethos and spirit of the progressive realisation of rights doctrine.

The BNS’s partial achievement of gender neutrality and its lack of specific provisions protecting the rights of the LGBTQ+ community underscore the need for a more comprehensive and thoughtful revision of the law. It is imperative that the legislation undergoes more thorough and consistent revisions to ensure that all parties, regardless of gender and sexuality, are treated equitably and without bias under the law.

(The writer is with the Nyaaya vertical at the Vidhi Centre for Legal Policy)

(This is the fifth article in a DH- Vidhi Centre for Legal Policy series on the proposed new criminal law codes) 

(The writer would like to thank Ayushi Sharma, Research Fellow in the Criminal Justice team at Vidhi, for her inputs)