From Exclusion To Inclusion
- IJLLR Journal
- Jul 8
- 2 min read
Jheel Nagori, B.A.LLB. (Hons.), Institute of Law, Nirma University
ABSTRACT
This paper explores an important part of the Indian legal framework governing sexual offences through the lens of feminist jurisprudence. The continued exclusion of male, transgender, non-binary individuals from the ambit of Section 63 of Bharatiya Nyaya Sanhita (BNS), undermines the constitutional imperatives of equality, dignity, and non-discrimination under Articles 14, 15, 21. The procedural and evidentiary shortcomings under the Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) exacerbate the systematic barriers to justice for non- female survivors. The persistence of colonial era beliefs with the newly established laws contradicts the purpose of making our justice system more democratic. The replacement of Indian Penal code with Bharatiya Nyaya Sanhita was projected as a break from colonial legacies, the substantive provisions reflect mere cosmetic changes, failing to challenge the colonial patriarchal jurisprudence that conceived women as property and men as dominant agents. The preservation of gendered language and marital rape immunity suggests a superficial legislative change that lacks feminist or intersectional perspectives. The systematic and institutional obstacles exacerbate the marginalization of non-female survivors. Law enforcement officers or healthcare professionals frequently lack the necessary training or established procedures to handle cases of sexual violence against men and queer individuals, resulting in secondary victimization, underreporting, and procedural errors. This argument suggests that the supposed decolonization of India's criminal laws has not resulted in meaningful gender inclusivity. It advocates for a comprehensive, survivor-centric legal framework that incorporates intersectional and gender-sensitive principles, thereby aligning domestic statutory law with international human rights obligations and contemporary legal theory. The study concludes with suggestions for changing the current legal system to guarantee fair treatment and access to justice for everyone, regardless of their gender identity.
Keywords: BNS, BNSS, BSA, Rape Laws, Sexual Offences
