Gendered Criminal Law and Exclusion: How the Bharatiya Nyaya Sanhita, 2023, Fails to Address the Needs of Men and LGBTQ+ Victims

India recently overhauled its entire criminal legal framework by enacting new criminal laws, namely the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam. The primary purpose was to decolonize and depart from the existing criminal law framework by making it more liberal and victim-centric in nature. This paper aims to analyze such claims as propagated and examine their on-the-ground implications critically, specifically under sexual offenses. Contrary to their stated objectives, the new laws do not enhance gender-neutral inclusivity; instead, they limit themselves by making provisions exclusively to safeguard the rights of women, thus creating a legal vacuum for men and the LGBTQ+ community. This can be evidently witnessed in the case of the omission of Section 377 of the Indian Penal Code, which historically proved to be the only course of remedy available for males, as it penalizes the “intercourse against the course of nature,” and also in the definition of rape under Section 63 of Bhartiya Nyaya Sanhita, which by words explicitly positions men as perpetrators and women as victims of sexual wrong by adopting a gender-biased approach. The void thus created for men can be correlated with the pre-existing social bias that equates masculinity with aggression and femininity with submissiveness, which presumes males are unsusceptible to any sexual vulnerabilities. Moreover, the binary definition under chapter 5 of BNS excludes members from the LGBTQ+ community from the general course of remedy. The paper seeks to analyze such deeply embedded societal norms that tend to influence the current criminal laws regime. The study relies on doctrines, reports, theories, and comparative statistical data to investigate the claims as projected and understand the underlying reasoning behind the lack of adequate safety provisions for men and members of the LGBTQ+ community. The study is significant as it critically the structural issues in new criminal laws and advocates for a gender-inclusive approach that deviates from pre-existing binary-based definitions.