When The Probe first reported that India’s new criminal code recognises only a woman as a victim of rape, it set out a gap that had quietly left men, transgender persons and others with no law to turn to. That reporting has now found an echo in court. The Delhi High Court has agreed to hear a public interest petition challenging the rape law provisions of the Bharatiya Nyaya Sanhita (BNS), and has listed the matter for 7 October 2026. Rather than turning the challenge away, as the bench had at one point indicated it might, the Court chose to keep it alive and hear it alongside related petitions that raise the same question about who the law is willing to protect.
The petition has been filed by advocate S.K. Srivastava, Shubhi Srivastava and others, all of them advocates or retired government officers who describe themselves as officers of the court assisting on a systemic deficiency they encounter in practice. Its path to a hearing has not been straightforward. An earlier version, filed in 2025, was dismissed in October that year, with liberty to seek intervention in a connected matter. The Probe reported this story on August 5, setting out how the BNS rape law had come to exclude every victim except a woman. S.K. Srivastava meanwhile pressed on, and in August 2026 the High Court permitted the petitioners to file a comprehensive petition covering all the affected groups. That fresh petition is the one now listed for 7 October.
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What the BNS Rape Law Leaves Out
At the heart of the petition is Section 63 of the BNS, the provision that defines rape. Read from beginning to end, it describes rape only as an act committed by a man against a woman. The code then defines a man and a woman as separate categories, with the result that, in the eyes of the rape law, only a woman can be a victim and only a man can be an offender. The petition argues that this makes the law discriminatory under Articles 14, 15 and 21 of the Constitution, because the same act of sexual violence is an offence when the victim is a woman and no offence at all when the victim is a man, a transgender person or, in the petition’s framing, an animal. The petitioners set out eighteen combinations of offender and victim, and argue that the rape law addresses only one of them, leaving the other seventeen without any offence.
The petition traces the gap to the repeal of Section 377 of the old Indian Penal Code. After the Supreme Court’s judgment in Navtej Singh Johar, Section 377 continued to cover non-consensual acts against men, transgender persons and animals, even though consensual acts between adults had been decriminalised. When the BNS replaced the Indian Penal Code and dropped Section 377, that residual protection vanished.
The petition goes further than most, asking the Court to also consider sexual violence against the dead. It raises necrophilia as an offence now left entirely unaddressed, noting that the United Kingdom criminalised the sexual penetration of a corpse through Section 70 of its Sexual Offences Act, 2003. The petition also states that Pakistan, which still retains Section 377, amended its penal code in 2024 to punish the violation of dead bodies. On this reasoning, it submits that the BNS has created a vacuum that no other provision fills.
Srivastava’s is not the only petition before the Delhi High Court on this question. Two others are pending, and each approaches the gap from a narrower angle. The first, filed by advocate Dr Chandresh Jain, is confined to transgender persons. It argues that the BNS does not recognise a transgender person as someone who can be raped at all, and that the one law meant to protect them, the Transgender Persons (Protection of Rights) Act of 2019, caps the punishment for any offence against a transgender person, however grave, at a maximum of two years.
The second, filed by advocate Barkha Nagar, goes directly at the definition itself. It contends that the rape law is unconstitutional because it recognises only women as victims, and asks the Court to strike down the defining provision. That prayer carries a risk. If the Court were to grant only what is formally sought, it could remove the definition of rape without putting anything in its place.
What sets these two apart from S.K. Srivastava’s petition is their limited scope. The Chandresh Jain petition speaks for transgender persons alone, and the Barkha Nagar petition trains its fire on the definition without offering the Court a way to cure the gap for everyone the rape law leaves out. Srivastava’s petition, by contrast, seeks to cover the full range of affected persons in a single challenge.
The Probe has reported consistently on the absence of gender-neutral protection in Indian criminal law, and has followed the BNS rape law gap since the new code came into force. In its earlier report, The Probe set out plainly what the statute does and does not say, showing that a man who is raped, or a transgender person who is assaulted, finds no offence under which the police can register the case. The question is not one for any single community, but one of equal protection, that the law should see every victim of sexual violence rather than only some.
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Two Years of Government Delay
On 12 August 2026, when the petition came up, it was argued before the Delhi High Court by advocate S.K. Srivastava. The Court tagged the petition with one filed by Gantavya Gulati and cancelled the separate date that the Gulati matter had been given, so that the two would be heard together on 7 October.
Speaking to The Probe, S.K. Srivastava said the decision was a significant step. “I am glad the Court has agreed to hear this case. It shows the Bench sees merit in the question we have raised. The Probe too has reported on this same gap. The fact is this, the law cannot recognise only one kind of victim of sexual violence and remain silent about the rest. By tagging our petition with the Gulati matter, the Court has brought the full scope of the issue onto a single hearing, and we now look forward to being heard on 7 October.”
Gulati, appearing in person, had approached the Court in August 2024, asking that a Section 377-equivalent protection against non-consensual sexual acts be restored for the safety and dignity of individuals, particularly those from the LGBTQIA+ community, following the gap left by the BNS.
When Gulati first came to court in 2024, the government did not defend the gap. Instead, its lawyers asked the Court to treat his petition as a formal complaint to the government, rather than something the Court itself should decide. They told the Court that the government was already collecting views from various groups on the new criminal laws, and would take a considered decision after hearing everyone. On that assurance, the Court agreed. It directed the government to decide the matter quickly, and gave Gulati the right to bring his petition back to court if the government dragged its feet.
That delay is precisely what followed. By March 2026, more than one and a half years had passed and no decision had been taken. When Gulati returned to Court, the government repeated that the subject was sensitive and that consultations were still under way. The Court was unpersuaded, recording that a year and a half was reasonable time to decide and that the decision was nowhere in sight, and it restored his petition to its original number. It directed the Union to file an affidavit setting out what steps it had actually taken. Read together, the orders describe a government that has held the same position for about two years without acting on it.
The union government promised in August 2024 to take a holistic view on the representation before it. About two years have passed since, with no decision on record. That is exactly the inordinate delay the 2024 order had guarded against, and it strengthens the argument that the representation route has failed. Those challenging the BNS rape law say the matter is no longer one for further consultation but is ripe for a substantive direction from the Court.
There is also a record that cuts against the government’s position. When the BNS Bill was examined by the Parliamentary Standing Committee on Home Affairs, chaired by Brij Lal, the committee expressly recorded that omitting Section 377 would mean not penalising non-consensual sexual offences against men, transgender persons and bestiality, and it recommended that these provisions be retained in the new code. The recommendation was not accepted.
The Supreme Court, in Navtej Singh Johar, had itself preserved Section 377 for non-consensual acts even as it decriminalised consensual ones. Taken together, this suggests that the gap in the BNS rape law is a recognised deficiency that Parliament’s own committee had flagged, rather than a considered policy choice. It is a deficiency the Court can declare, and on which it can direct a time-bound decision, without itself creating any offence, which remains the domain of Parliament.
Why a Gender-Neutral Law Matters
A gender-neutral framework would not dilute the protection that women already have under the BNS. It would extend the same protection to everyone the present law forgets.
The larger question is why a country that has rewritten its entire criminal code still holds to a rape law that sees only one kind of victim. The government was given two years to answer it and let the time run out. Now the Court must decide whether the law will go on seeing only one victim, or finally see them all.
Disclaimer : This story is auto aggregated by a computer programme and has not been created or edited by DOWNTHENEWS. Publisher: theprobe.in
