Gurugram: The Haryana Police have registered a case not of sexual assault but of causing simple “hurt” under Section 114 of the Bharatiya Nyaya Sanhita (BNS) after a bone cancer patient alleged he was sodomised by two policemen and a home guard inside a police station in Kurukshetra last week.
The investigating officer does not dispute the fact that the young man’s complaint includes these allegations.
Nirmal Singh, Deputy Superintendent of Police, Ladwa, told ThePrint Saturday that a case had been registered against the three accused for causing “hurt”. Asked why sexual assault charges were missing when the complainant had specifically alleged sodomy, Singh said though the police are still probing the veracity of the allegation, it will hardly make a difference.
This is because Section 377 of the erstwhile Indian Penal Code (IPC), which covered non-consensual carnal intercourse against the order of nature, was abolished when the BNS replaced it in July 2024, and nothing was put in its place.
“Even if the allegation is found correct,” Singh said, “there is no penal provision available under the new laws.”
What changed & what was lost
Section 377 of the IPC stated: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”
After the Supreme Court’s 2018 ruling in Navtej Singh Johar vs Union of India, the section was read down—consensual same-sex relations between adults were decriminalised. The section itself, however, survived. It continued to apply to non-consensual sexual acts against men, sexual offences against transgender persons, and bestiality.
When the BNS came into force on 1 July, 2024, Section 377 was dropped altogether. Rape under the BNS is defined solely in relation to a female victim. No gender-neutral sexual assault provision was introduced in the new code.
An adult male who is sexually assaulted today is left to seek remedy under provisions covering hurt, grievous hurt, wrongful confinement or intimidation. None of these carries the specific culpability or sentencing weight of a sexual offence.
The immediate consequence in the Kurukshetra case is clear. Voluntarily causing hurt under the BNS is a bailable and non-cognisable offence. The accused cannot be arrested without a warrant. Bail is a matter of right. The maximum sentence on conviction is one year’s imprisonment and a fine of up to Rs 10,000.
Parliament was told this would happen
The omission of Section 377 was not an oversight no one caught in advance.
The Parliamentary Standing Committee on Home Affairs, chaired by BJP’s Rajya Sabha MP Brij Lal, had examined the BNS and submitted its report to the Rajya Sabha on 10 November, 2023.
The committee had noted that provisions of Section 377 had remained applicable to non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality, and that the BNS had made no provision for non-consensual sexual offences against male, female, or transgender persons. It recommended that the government include Section 377 in the proposed code.
The committee also said that to align with the BNS’ own stated objective of moving towards gender-neutral offences, it was “mandatory to reintroduce and retain Section 377 of the IPC”.
The government did not accept the recommendation and the final BNS carries no such provision.
Inside Parliament, the concern was raised during a debate on the bills as well. Hyderabad MP Asaduddin Owaisi questioned in December 2023 whether only women were subjected to stalking and rape, and whether male and transgender victims had been thought of. His remarks were met with ridicule. The legislation passed without addressing his concern.
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PIL & no answer from Centre
The legal vacuum has since reached the courts.
Hearing a PIL by advocate Gantavya Gulati challenging the exclusion of penal provisions for non-consensual unnatural sex from the BNS, the Delhi High Court in August 2024 directed the Centre to treat it as a representation, and asked the government to decide the matter preferably within six months.
The PIL said the omission altogether of provisions previously covered under Section 377 unreasonably affected vulnerable groups and undermined the constitutional promise of equality and dignity, and that the absence violated Articles 14, 19, and 21 of the Constitution.
The matter was listed again before the Delhi High Court this February, with the Centre yet to file a substantive response. The Centre had earlier taken the position that courts cannot direct Parliament to enact a particular law.
‘Criminal law has become discriminatory’
P.K. Sandhir, a senior criminal lawyer from Hisar who also practises in the Punjab and Haryana High Court, told ThePrint that the removal of Section 377 without any replacement has left a serious void.
“Under the IPC, sexual intercourse by a male with another male, whether with or without consent, was a criminal act. If the government wanted to decriminalise it for the sake of the LGBTQ community, it could have at least included a provision for cases where a man is sexually assaulted by another man without consent. Now there is no legal provision to deal with such cases,” he said.
Sandhir flagged a further inconsistency. When a minor under 18 is sexually assaulted, the Protection of Children from Sexual Offences (POCSO) Act applies regardless of the gender of the victim or the accused. The charges are serious, and so is the punishment. But when the victim is a man over 18, the sexual dimension of the crime has no legal name.
“The criminal law has become discriminatory. Two victims of the same crime are treated differently on the basis of age alone. A boy under 18 is covered under the POCSO Act. For a man over 18, the law is silent,” Sandhir said.
‘Institutional failure’
Rajbir Deswal, a retired IPS officer and lawyer, told ThePrint that the Kurukshetra case had brought custodial violence back into sharp focus, and that the pattern was not new.
“Whether in hospitals, police stations, prisons, or welfare institutions, the underlying thread is the same—authority is misused, trust is violated, and vulnerability is exploited. Custodial sexual abuse is not merely an individual crime. In many cases, it is an institutional failure,” he said.
Deswal said the incident should lead to reform, not just outrage, and called for extending the D.K. Basu guidelines beyond policing to every institution where a person is held in any form of custody.
The D.K. Basu guidelines trace to a 1997 Supreme Court ruling that came out of a writ petition by D.K. Basu, then Executive Chairman of Legal Aid Services, West Bengal, who wrote to the court drawing attention to deaths and violence in police custody and lockups. The court treated the letter as a PIL and issued mandatory requirements for all arrests and detentions.
Under these guidelines, arresting officers must wear visible name tags and identification. An arrest memo must be prepared at the time of arrest and attested by at least one witness. The arrested person must be informed of the grounds of arrest and is entitled to have a friend, relative or lawyer notified. The time, place of arrest and venue of custody must be communicated to the next of kin within 8 to 12 hours. Medical examination is mandatory at the time of arrest and every 48 hours thereafter during custody.
The Supreme Court held in the D.K. Basu case that custodial violence is a direct infringement of the fundamental rights guaranteed under Articles 21, 22, and 32 of the Constitution.
Deswal said that these protections, currently operative for police custody, must now be mandated across all institutions where persons are under the authority of another—alongside periodic psychological counselling for personnel who exercise such authority at the ground level.
On the vacuum post-abolition of Section 377 of the IPC, Deswal said the police still have other sections of the BNS to invoke, but one must understand that the Kurukshetra police have said the allegations of sexual assault are yet to be established.
(Edited by Nida Fatima Siddiqui)
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