Abstract

This article critically analyses the heteronormative and patriarchal underpinnings of Indian rape laws, to persuade for a paradigm shift to gender-neutral and constitutionally compatible legislations. Despite the incremental broadening of rights provided under path-breaking decisions such as “NALSA v. Union of India (2014)” and “Navtej Singh Johar v. Union of India (2018)”, Section 63 of the Bharatiya Nyaya Sanhita, 2023, the definition of rape remains exclusively a crime that is committed by a man against a woman. By framing the definition of this offence as gender(S)-specific, such gender(S)-specific definition of the offence eo violates the constitutional guarantees of equality under Article 14 and dignity under Article 21 for it provides no protection to male, transgender and non-binary victims. Applying a doctrinal methodology, it examines legal texts, case law, treaty commitments, and comparative law from such jurisdictions as Canada, the United Kingdom, and Australia. It magnifies systemic issues, such as legislative, procedural, and infrastructural weaknesses, patriarchal myths, institutional bias, and the absence of comprehensive support. The document recommends a redrafting of Section 63 to make it gender neutral, in addition to systemic changes like extension of the Nirbhaya Fund to all survivors, gender neutral one stop centers and gender inclusive sex education through the National Curriculum Framework 2023. Finally, the research argues for a victim-centered lensall based on what I term constitutional moralityand one that foregrounds intersectionality and fair justice for all survivors of sexual violence, regardless of genderosity and sexual orientation.

Keywords