Dismantling Carceral Norms: Gender-Neutral Sexual Violence Laws and the Promise of Transformative Justice in India

Current Indian law regarding rape, codified in Section 63 of the Bharatiya Nyaya Sanhita (BNS), 2023, is still institutionally rooted in a heteronormative and binary system that identifies only cis women as victims and cis men as perpetrators. Such a legal structure not only excludes male, transgender, and non-binary survivors of sexual assault but also reinforces a limiting, essentialist definition of gender and harm. This article questions the epistemic and legal formation of the “ideal victim” and its consequences for access to justice within India’s criminal law. Based on constitutional equality requirements, the transformative possibility of the NALSA v. Union of India judgment, and trends within comparative jurisdictions like Canada, Nepal, and the United Kingdom, this paper argues that sexual offence legislation should be reimaged on a gender-inclusive basis. It also delves deeper into the contradictions of formal equality and substantive justice, with an emphasis on how gender-neutral legislation may be misinterpreted as being gender-blind in the absence of structural change, intersectional awareness, and survivor-oriented jurisprudence. The research places the discussion within feminist legal theory and queer jurisprudence in order to contend that gender neutrality is not in conflict with protecting women but can actually widen the liberatory power of law. The article finally argues that substantive legal transformation should go beyond symbolic acknowledgment and confront structural obstacles that impede justice for all survivors, irrespective of their gender identity.