CONCEPT OF ‘RAPE’ UNDER INDIAN LAW: DEPIVATION OF TRANSGENDER PERSONS

Santanu Chakrabarti

No 2024-51-04, Working papers from Voice of Research

Abstract: Indian legislators have enacted a new substantive criminal code namely Bharatiya Nyaya Sanhita, 2023 replacing the old colonial legislation Indian Penal Code created by the then British rulers in 1860. Many new notions have been introduced and many provisions of the old Act have been discarded considering their relevancy in the present era. Apart from men and women, transgender persons have also been recognized as a gender in the new Act which was not the position in the old legislation. But the concept of ‘rape’ as an offence has not at all been changed, the same idea of committing the crime by a man against a woman has been retained in the new Act also, no victimization of a transgender has been considered herein. But in many developed countries including U. K. and U.S.A., this crime is conceptualized as genderneutral. The famous judgement passed by the Hon’ble Supreme Courtin National Legal Services Authorities vs. Union of India [(2014) 5 SCC 438], the Apex Court categorically affirmed that the fundamental rights granted under the Constitution of India would be equally applicable to the transgender persons following which, the Transgender Persons (Protection of Rights) Act, 2019 was enacted by the Indian Parliament. Accordingly, the provisions containing the concept of rape should suitably be amended so that the trans genders may also be accommodated as the victims of rape. Key words: IPC, Bharatiya Nyaya Samhita, 2023, Rape, Transgender Persons, Constitution of India.

Date: 2024-09
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