BACK TO SECTIONS(2014) 5 SCC 438
N/ACognizable: N/AN/A
Reform Highlights
1
Section 8: Transgender community explicitly included in gender-neutral pronoun scope — a direct NALSA response.
2
Section 10: 'Man' and 'woman' defined as 'of any age' — ensuring age-neutral application of gendered provisions.
3
These definitions inform the application of every gender-specific provision in the BNS.
THE STATUTE
The Clause
Section 8: The pronoun 'he' and its derivatives are used of any person whether male or female. Words importing the masculine gender shall be taken to include females and the transgender community. Section 9: Unless the contrary appears from the context, words importing the singular number include the plural number, and vice versa. Section 10: The word 'man' denotes a male human being of any age; the word 'woman' denotes a female human being of any age.
Legal Commentary
Sections 8–10 provide interpretive rules governing gender, number, and age — apparently technical provisions that carry significant social and legal importance. Section 8's treatment of gender is particularly significant in light of the Supreme Court's NALSA judgment (2014), which recognised transgender persons as a 'third gender' with all constitutional rights. The BNS's explicit inclusion of 'the transgender community' within masculine gender pronouns — ensuring that provisions using 'he' apply to transgender persons — is a direct legislative response to NALSA. This is a meaningful departure from the IPC's binary gender framework. However, the BNS's gender-specific rape definition (Section 63 — only a man can commit rape against a woman) remains unchanged, meaning transgender victims and transgender perpetrators may not be fully covered by the main sexual offence provisions, requiring resort to Section 71 (unnatural offences, as modified post-Navtej Singh Johar) or POCSO for children. Section 10's definitions of 'man' and 'woman' as 'of any age' are important — they mean that provisions protecting 'women' (like Section 354 — outraging modesty of a woman) protect female persons of all ages, including girls, without the need for a separate age-specific reference.
Landmark Precedents
National Legal Services Authority v. Union of India (NALSA) (2014)
RELEVANCE
Supreme Court recognised transgender persons as a 'third gender' with full constitutional rights — the BNS's explicit transgender inclusion in Section 8 is a direct legislative implementation of this judgment.
Case Simulations
"A transgender person who is sexually assaulted — may invoke BNS 71 for non-consensual acts not covered by the gender-specific Section 63."
"A law that says 'he who commits murder shall be punished' — applies to any person, male, female, or transgender, under BNS Section 8."
Expert Insights
The BNS Section 8's inclusion of the transgender community means provisions using masculine pronouns (he/his) apply to transgender persons. However, provisions specifically using 'woman' (like Section 63 — rape) are gender-specific and their application to transgender persons remains a subject of evolving jurisprudence, with Section 71 and POCSO filling gaps.