[This article has been authored by Kurzith Imran H, an advocate at Madras High Court.]

Introduction

On July 1, 2024, India’s criminal law underwent its most significant transformation since independence. The Bharatiya Nyaya Sanhita, 2023 (“BNS”), the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Bharatiya Sakshya Adhiniyam, 2023 (“BSA”) came into force, replacing the Indian Penal Code, 1860 (“IPC”), the Code of Criminal Procedure, 1973 (“Cr.PC”), and the Indian Evidence Act, 1872 (“IEA”), respectively.

One of the promises made in the statement of objects and reasons of the new criminal laws was a move towards gender-neutral offences. However, the question remains: is the new framework truly gender-neutral, specifically in cases of sexual offences against transgender persons?

The BNS contains no provision that criminalises sexual assault against transgender persons, a community already subjected to decades of social alienation and legal invisibility. This article examines the nature and consequences of that omission and the need for immediate legislative action.

From Section 377 to Navtej: The IPC’s Framework

Under the IPC, the framework for sexual offences against transgender persons was codified under Section 377 of IPC, which criminalised “carnal intercourse against the order of nature with any man, woman or animal.” Historically, the provision was enforced against individuals in same-sex relationships regardless of whether it was consensual or not. However, the Supreme Court, in its landmark decision in Navtej Singh Johar v. Union of India (“Navtej Singh”), decriminalised consensual same-sex relationships between adults. Further, the Court held that Section 377 would continue to criminalise non-consensual sexual acts against adults, all acts of carnal intercourse involving minors, and acts of bestiality. Section 377 uses the term “whoever,” and was therefore theoretically applicable to protect transgender victims of sexual assault. However, the criminalisation was rooted in the moral concept of “unnaturalness” rather than as a violation of bodily autonomy.

The decision in Navtej Singh was a judicial preservation of Section 377’s limited protective function for transgender victims. Yet it remained a legal instrument of last resort and not a coherent framework.

The BNS: A Broken Promise

The enactment that claimed to mark a significant step towards gender neutrality is, ironically, the one that neglected to protect transgender victims of sexual offences.

Unlike Section 377 of, IPC, which, despites its limitations, has provided protection to some extent, the BNS omits any equivalent provision, thereby leaving transgender victims of sexual offences without any express legal remedy.

The Parliamentary Standing Committee on Home Affairs, in its 246th Report (¶ 1.14 – 1.17) submitted in November 2023, expressly raised concern about this omission. The report stated that, to align with the objectives of the BNS, it is necessary to reintroduce and retain Section 377 of IPC.

Despite this recommendation, Parliament enacted the BNS neither with a comprehensive framework protecting transgender victims nor with a provision equivalent to Section 377.

The Consequences of the Legal Vacuum

This legislative neglect has resulted in a lacuna where transgender survivors of sexual assault are left without any equitable remedy. For instance, after 1^st July 2024, consider the case of a transgender victim of sexual violence approaching a police station to lodge a complaint. The question that immediately arises is: if the law does not categorise an act as an offence, then under what provision can an FIR be registered? This legal vacuum is the outcome of the legislative silence on protecting transgender victims.

There is no provision under the BNS that captures the sexual nature of the offence. The limited remedies available are:

• Sections 114 to 117 of BNS (Hurt and Grievous Hurt) criminalise acts causing bodily injury. Section 117 of BNS carries a maximum punishment of seven years, compared to a minimum of ten years for rape under Section 64 of BNS. The difference in the severity of the punishment reflects a categorical downgrading of the gravity of the offence.
• Section 18(d) of the Transgender Persons (Protection of Rights) Act, 2019, provides protection for transgender victims against any forms of abuse, including physical, emotional and sexual abuse. However, this protection is limited in nature as even in cases of sexual offences the maximum sentence under this provision is merely two years and the offence remains bailable. This section also dilutes sexual abuse by treating all forms of harm against transgender persons as equivalent in gravity.

The Internal Contradiction within the BNS, 2023

Section 35 of BNS states that every person has a right to defend against any offence affecting the human body. Section 38 further strengthens this right by extending it to cases potentially causing death in specified circumstances.

The statute has an internal contradiction that has not received sufficient attention. While Section 38(d), BNS provides that the right of private defence of the body extends to the voluntary causing of death in cases of an assault with the intention of gratifying ‘unnatural lust’, but the same BNS does not expressly criminalise non-consensual sexual acts against transgender persons.

A sexual act committed against transgender person may justify the use of lethal force in self-defence. The contradiction lies in the fact that the harm is acknowledged at the level of prevention, but is not adequately recognised as an offence.

The Judicial Response: Post BNS Enactment

In August 2024, a PIL was filed before the Delhi High Court challenging the exclusion of a provision equivalent to Section 377 of IPC in the BNS. The case was disposed of by directing the Union Government to treat it as a representation and act upon it. The Government neither responded nor introduced any amendment in this regard. Later in October 2024, the same issue was brought before the Supreme Court in Pooja Sharma v. Union of India. The Court declined to entertain the petition and held that it cannot direct that a particular act constitutes an offence. Such action falls under the power of the Parliament.

As of July, 2026, two years after the BNS came into force, no amendment has been introduced. In March 2026, the Delhi High Court restored the petition which was disposed of in August 2024 to its original file, observing that a period of one and a half years is sufficient time for deciding on the representation given in the form of a direction on 28 August, 2024 on which the Government has not taken any step.

The courts have thus taken a firm stand on the separation of powers, but the consequence of the continued legislative inaction is that victims are left without an adequate and equitable remedy.

The Way Forward

In NALSA v. Union of India, the apex court recognised transgender persons as a third gender and held that they are entitled to full protection of fundamental rights under the Constitution of India.

This legislative omission violates Article 14 and Article 21 of the Constitution of India. Under Article 21, the right to bodily integrity is protected regardless of gender. A framework that criminalises an act against women as rape, carrying a minimum of ten years imprisonment, while treating the sexual abuse of a transgender person as a general hurt offence is constitutionally indefensible.

Two years of statutory silence on this issue makes a legislative solution not merely desirable, but a constitutional obligation. What is needed is a provision that:

1. criminalises non-consensual sexual acts against transgender persons as a sexual offence;
2. is framed on the basis of violation of bodily autonomy rather than on moral concept of ‘unnaturalness’; and
3. addresses the bestiality gap, which the BNS similarly fails to criminalise.

Conclusion

The assumption that women and children are the only victims of sexual offences is shaped by the disproportionate incidence of sexual violence against women and children. However, many incidents of sexual offences against transgender persons are underreported because of social alienation and the lack of accessible and equitable legal remedies.

The enactments that promised to make criminal law gender-neutral have in fact, done precisely the opposite with regard to sexual offences by repealing Section 377 without replacement. The courts have acknowledged the issue and urged Parliament to take action to fill the legal vacuum.

The question that the Parliament must answer is a fundamental constitutional one: does the State recognise that the bodily autonomy of transgenders person is equally deserving of protection under the law? Until this question is answered through meaningful legislative reform, the promise of a truly inclusive and equitable criminal justice system remains unfulfilled.