Introduction
A recent case that shocked the nation’s conscience was the sexual abuse of a cancer patient in a Haryana police station. The man, a 30-year-old bone cancer patient, was stopped on his way home by police personnel, who took him to the station, physically beat him, and later sexually assaulted him. His complaint stated that the policemen, seeing that his legs had no hair due to chemotherapy, made a lewd remark “Iske patt to ladkiyon jaise hain (his thighs are like a girl’s)”, before sexually assaulting him.
This brief description itself highlights the grisly nature of the case. A reasonable recourse would be rigorous imprisonment that extends to at least 10 years, if the claims are later substantiated, and if the victim suffers grave injuries, then the penalty may even warrant capital punishment. However, a dismal picture that presents itself here is that the only recourse available to this victim was to file an FIR of ‘hurt’ under the provisions of Bharatiya Nyaya Sanhita (BNS), 2023, the maximum punishment for which is simple imprisonment up to one year. One year imprisonment for actions which may have traumatised him for life, one year imprisonment for subjecting an infirm person to physical and sexual violence, one year imprisonment for violation of his physical and sexual integrity.
This is the position of Indian law after the enactment of BNS. While its modernised framework sought to make cases of physical and sexual assault more stringent, it precluded the right of men to bodily and sexual integrity. This is not an act of mere legislative omission; it’s an active affirmation and reinforcement of the construction of masculinity in Indian society. This article argues that the omission of legal protection for male and MSM victims is not merely a legislative oversight. It is an expressive act of law that reproduces hegemonic masculinity by denying male vulnerability and affirming heterosexual masculinity as the normative legal subject. Manhood then operates on the fiction of absolute impossibility of male victimhood.
Constructing Masculinity
Masculinity is not a uniform experience. Western sociologists have conceptualised it in distinct ways, among the highly cited perspectives are those of Michael Kimmel, R.W. Connell, and Tristan Bridges and C.J. Pascoe. These theorists view masculinity within a framework of Gramscian hegemony. Hegemonic masculinity here becomes a self-legitimising entity where dominant groups maintain power not through physical force, but by shaping society’s worldview in a manner that naturalises their rule. It takes the form of socially exalted ideas of manhood that legitimise power over women and subordinate men. Kimmel argues that American masculinity is shaped by a fragile social and historical construction of homophobia, which he redefines as men’s pervasive fear of other men. Interestingly, he relies on the definition of manhood summarised by Robert Brannon into four key phrases: “No Sissy Stuff” (do not be feminine), “Be a Big Wheel” (be measured by success, wealth, power, and status), “Be a Sturdy Oak” (never show vulnerabilities), and “Give ’em Hell” (be aggressive, manly, and daring). Kimmel then suggests that masculinity is a homosocial enactment where men perform for and are evaluated by other men. Homophobia for him then is a profound systemic fear that other men will unmask them, emasculate them and reveal that they are not “real men”. This pervasive fear of being perceived as a “sissy” creates a destructive cycle of fear of vulnerability which leads to shame (because admitting fear is unmanly) and shame leads to silence. It is silence that sustains and keeps the system of hegemonic masculinity running.
Connell takes this theory a step further in her book Masculinities. She argues that while hegemonic masculinity sits at the top of power hierarchies, other forms of masculinity exist in one of three relationships to the hegemonic form: subordination, complicity and marginalisation. Subordination describes the dominance of one group of men over others within the gender order. In contemporary society, the most significant case is the dominance of heterosexual men over homosexual men. This subordination is maintained in material practices of systemic violence. More recent scholarship has further demonstrated that masculinity is capable of adapting to social change without necessarily relinquishing its underlying hierarchies. Bridges and Pascoe argue that even seemingly progressive performative or hybrid performances of masculinity may ultimately reinforce hegemonic power rather than dismantle it.
In India, the idea of performative maleness has thus far not gained much traction; masculinity continues to be informed by rigid notions of hegemonic manhood. Rigidity of identity is essentially a fascist project; it’s a politically reactionary endeavour of social homogenisation which is contested by fluid identities. Fluid presentation of self does not sustain the power hierarchies many wish to erect and maintain and thus it is suppressed, subordinated, and subjugated. Performance of gender does not operate in a vacuum; it is a part of ongoing socio-political discourse which is shaped by the dominant narratives of society in stylized repetition of acts. Indian masculinity used to be informed by notions of Victorian masculinity. These notions were internalised during the colonial period and were in a constant state of flux due to economic changes, globalisation, and feminist movements. India underwent a distinct socio-cultural revolution in the post-colonial era. When the traditional notions of protecting ‘Mother India’ from the British were done away with, traditional masculinity became unmoored. This could have been a fertile ground for development of less totalitarian notions, but the rigid hegemonic identity sought sustenance in the ethnonationalist protectionism. Indian men embodied the role of protector based on religious plurality, and this role needed aggression, daring, and courage (Give ’em Hell). Thus, we reached complicit masculinities that were created to preserve a reactionary political order, to “defend the honour of women”, and to be invulnerable to “sissy” like traits. Unlike western notions of hegemonic masculinity that long for past patriarchal roles, its Indian counterpart frames it as a “forward” looking narrative where its historical colonial (and even post-colonial) victimhood justifies the outward aggression, political illiberalism, and desire to dominate, a narrative reinforced by online echo chambers and social media manospheres. The personal thus remains, as it always has been, political.
Section 377 and Its Afterlife
The sexual assault of the man in Haryana then is not just a gruesome crime; it is also the symptom of a society that exalts one way of being a man and repudiates the others. The policeman’s remark “Iske patt to ladkiyon jaise hain” articulates the ideological foundation of homophobia in India; the violent feminisation of the queer male to justify his degradation. This specific case study functions as a microcosm for a much wider systemic crisis. A systemic crisis that profoundly affects men who have sex with men (MSM) and queer folk in India.
Sexual violence against men in India is not a novel phenomenon; it is however a highly underrepresented one. This violence is perpetuated and reinforced by social and legal standards. A 2017 study found that after the recriminalisation of same-sex sexual intercourse, of 449 MSM and hijra respondents surveyed in Maharashtra, 56.5% reported having been victimised in their lifetime, and 37.1% reported victimisation within the past 12 months. The judicial action thus functioned as an affirmation of the subservient role of MSM individuals. Psychologically, it functioned as a licence for abuse and violence by creating a culture of protection for the abuser, because the victim’s identity is deemed criminal by the state, he is legally disarmed. A profound sense of impunity emerges and a structural signal is sent labelling MSM as “lesser” citizens. A 2013 study in Karnataka noted that of the 543 MSM individuals, prevalence of sexual violence was 18% in the past year itself. Of the individuals who reported such violence, an associated risk factor was identified as the presentation of “feminine” gender expressions and traits. A 2016 study recording rates of depression among MSM individuals, found that Kothis (people assigned male at birth who adopt feminine gender roles or behaviours, and who typically prefer the receptive (passive) role in same-sex relationships) reported much higher rates of sexual violence and greater risk to HIV. Among the more recent studies on MSM violence in India done in 2024, it was demonstrated that of a total of 300 self-identifying MSM, more than 60% faced some kind of violence based on their sexuality and 30% of the total faced sexual violence, more than half of the victims were individuals who were engaged in the receptive role during sexual intercourse.
Indian framework for MSM was primarily governed by the erstwhile Section 377 of the Indian Penal Code, 1860. Section 377 criminalised “carnal intercourse against the order of nature” with imprisonment for life, or a term extending to 10 years. Unnatural sex was interpreted to include same-sex sexual intercourse; as such, Section 377 served to criminalise MSM identities and queer sexual expression. The struggle against this archaic provision began in 2001, when the Naz Foundation challenged the constitutional validity of Section 377 before the Delhi High Court. The petition was dismissed in 2004 after being termed as an ‘academic challenge’ as opposed to a public rights issue. The petitioners however did not surrender to the judicial backlash. In 2006, interventions were filed by several social welfare organisations in support of Naz. Finally, in 2009, the historic Delhi High Court judgement in Naz Foundation v. Govt. of NCT Delhi was pronounced. Delhi High Court categorically held that Section 377 was violative of Articles 14, 15, and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private. The respite of the 2009 judgement was however short lived. In 2013 the Supreme Court overturned the Delhi High Court judgement in Suresh Kumar Koushal v. Naz Foundation, citing it as a judicial overreach into the legislative domain, a pronouncement that invited criticisms for its shoddiness and biases. Scholars noted the factual errors, missing citations, and the inconsistencies in the way legal precedents were used even though their outcomes did not actualise the justices’ interpretations. Finally, five years later, headway was made by the landmark judgement of the Supreme Court in Navtej Singh Johar v. Union of India, citing constitutional morality, the court read down Section 377 insofar as it criminalised consensual same-sex intercourse among adults. This ruling served as an affirmation of human rights while retaining the punishable nature of non-consensual sexual intercourse.
In the post-2018 period Section 377 remained as a statutory safeguard against non-consensual sexual violence; it could be invoked by both men and women alike. While it was rarely invoked in the cases of male sexual assault, the language of the section itself remained an empowering tool. It legitimised queer identities by ensuring that law was not silent on their issues. The BNS post-enactment left a legal void; it removed entirely Section 377 without replacing it with a suitable alternative.
Beyond the Grievability of MSM lives, the erasure of Section 377 serves as an avowal of the hetero-masculine hegemon. BNS here does not conform to its promise of modernity or its acceptance of the court’s verdict in Navtej; it enforces discourses of masculinity structured by dominant political narratives. These narratives produce a hyperreality of masculine simulacra: men are cast strictly as protectors rather than victims, rendering their aggression a justified byproduct of defence. Because this simulation demands the absolute rejection of weakness, the aggression cannot be challenged even when it is self-destructive. To accept vulnerability would expose the protector archetype as a hollow copy, collapsing the entire simulation of male dominance.
The Indian hegemon thus becomes victimised by his own socio-cultural constructions. He becomes enslaved to the notions of reality that are a product of an echo chamber he himself conforms to as disavowal subjects him to femininity and subordination. Therefore, we arrive at a self-constructed cage of linguistic discourse that marginalises the very constructors of that discourse.
Law as Social Meaning
Notably, India has a notorious compliance history when it comes to enactments. Several laws exist that are never followed or never enforced, yet their existence itself makes a difference in the lives of those affected by them. Laws function as indicators of the structural conditions of a society. When the State passes a law that is hostile to a group, it legitimises interpersonal stigmatisation. Perpetrators are highly cognitive actors; they recognise that a victim who is technically dehumanised by the State cannot seek protection from State actors without facing self-incrimination. This reinforces the perpetrator’s absolute sense of control. Beyond legitimisation of control, Connell’s framework of Protest Masculinity would suggest that structural legal exclusion also forces individual psychological and behavioural conformity to harmful gender roles including hypermasculinity, aggression, and deviant behaviour.
Thus, a question that becomes pertinent is: if aversive law can legitimise violence and structures of hegemonic masculinity, can affirmative law dismantle those structures? Several theorists would back such a claim. Many people would support a law because of the statements made by the law, as Sunstein would argue, legal code does more than regulate action; it makes profound cultural statements that actively manage social norms. When a law creates affirmative structures that empower MSM and queer victims, it exerts coercive isomorphism, and actors are forced to adapt their standards to dominant institutional expectations, over time, with reinforcement by the community, this coercive isomorphism transforms into normative isomorphism, a healthier non-hegemonic script would become accepted as it has been normalised as a standard, respectable way of being human.
A stark empirical contradiction emerges when evaluating rape laws in India: if progressive legal standards exist, why does gender-based violence against women still persist, and why do the structures of hegemonic masculinity continue to express patriarchal sentiments? To reconcile this, socio-legal theory dictates that we must decouple the expressive law from actionable law. While the statutory existence of anti-rape laws fulfils Sunstein’s expressive functions, its structural transformation in India is choked at the enforcement stage. The deterrent effect of law relies not only on the severity of the text but also on the certainty and celerity of its execution. When institutional enforcement is sluggish, the state’s formal pressure loses its teeth, signalling functional impunity to perpetrators. This, however, does not defeat the instrumentality of law that protects marginalised groups. Affirmative laws strip dominant men of their tools of exclusion, especially in reference to queer and MSM folk. Eric Anderson notes that inclusive laws dismantle the structures of homohysteria. Validating MSM and queer experiences reduces the social cost of their identities. It normalises emotional vulnerability as a legitimate facet of inclusive, non-hegemonic manhood. Gender-neutral frameworks therefore do more than just provide a legal script; they signal what society recognises as just, equitable, and legally impermissible.
Conclusion
The plea for introduction of gender-neutral sexual assault laws in India is a project that has been ongoing since the 1990s. First dealt with by Justice Jaspal Singh in Smt. Sudesh Jhaku v. K.C.J. and Others (1996), it was noted that men who are sexually assaulted should have the same protection as female victims. In 2000, the 172nd Law Commission report recommended widening the scope of Section 375 of the IPC to include both men and women within its ambit by replacing the gendered terminology with words ‘victims’ and ‘perpetrators’. Justice Verma Committee, constituted in 2012 to recommend amendments to criminal laws to combat sexual violence, too suggested that rape-related provisions be cognisant of the possibility of ‘sexual assault on men, as well as homosexual, transgender, and transsexual rape’. The legal landscape witnessed gradual progress with the promulgation of the Criminal Law (Amendment) Ordinance 2013 which expanded the scope of rape laws to include men. However, following massive discontent by civil society, it was repealed and replaced by the Criminal Law (Amendment) Act 2013 which reversed the definition of rape to view only females as victims and males as offenders. Since then, the Supreme Court dismissed numerous petitions that argued for gender-neutrality in sexual offences law. This definition was retained under the BNS even though the Parliamentary Standing Committee on Home Affairs in its 246th report on BNS explicitly recommended retention of a provision equivalent to Section 377 as it stood post Navtej Singh Johar.
The relief felt by the MSM and queer community post Navtej has now been transformed into frustration following the enactment of BNS. Their identities have been marginalised, their voices erased, and their social position undermined. However, as it has been demonstrated, queer issues are not simply queer issues. They are indicative of structural barriers that undermine the legitimacy of all sections of society regardless of gender. Structures of hegemonic masculinity that these laws seek to preserve marginalise the hegemons as well as the victims. Society perpetuates exclusionary gender norms that shape the experiences of queer individuals and women, while also compelling men to conform to hegemonic ideals of masculinity. These ideals silence, subordinate, and subjugate. This raises an uncomfortable but necessary question: why do we continue to preserve ideals that ultimately work to everyone’s detriment? Power and hegemony survive not because they are invisible, but because they are mistaken for common sense. The insistence that domination is natural, necessary, or inevitable is itself the architecture of oppression. Liberation, therefore, is not the pursuit of a kinder hierarchy. It is the refusal to mistake hierarchy for freedom.
