New Delhi: The proposed Bharatiya Nyaya Sanhita (BNS), 2023, which seeks to replace the existing, colonial-era criminal legislation — the Indian Penal Code (IPC) of 1860 — does not contain a replacement for Section 377 IPC, which the Supreme Court had read down in 2018 to decriminalise homosexuality.
Union Home Minister Amit Shah in August introduced the proposed legislation in Lok Sabha and said the Indian Penal Code (IPC), 1860, Criminal Procedure Code (CrPC), 1898, and the Indian Evidence Act, 1872, will be replaced by the Bharatiya Nyaya Sanhita (BNS) Bill, 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS) Bill, 2023, and Bharatiya Sakshya (BS) Bill, 2023, respectively, once these are cleared by the Parliament.
Section 377 IPC criminalised “carnal intercourse against the order of nature”, which included consensual sexual acts between adults of the same gender and sexual acts with animals. BNS, which is currently being scrutinised by a Parliamentary Standing Committee, has omitted Section 377 of the IPC completely.
While Chapter 5 of the proposed law covers offences against women and children, it does not make sexual assault on adults gender-neutral. This means that only women can be victims of sexual assault under this law, and not men who may face such abuse.
Legal experts, including Supreme Court advocate Arundhati Katju, have raised concerns against the proposed law, saying it leaves out several vulnerable groups from legal protection, such as men and LGBTQ community members who face sexual assault.
Speaking to ThePrint, they have also urged the government to bring in a law that covers sexual crimes based on the motive of sexual violence.
While the Supreme Court verdict of 2018 decriminalised consensual same-sex relations, Section 377 of the IPC continued to be used as a safeguard against sexual assault of men and those from the LGBTQ community, and in some cases to give legal protection to marital rape victims.
The absence of the provisions of Section 377 of the IPS from BNS has serious implications for marital rape victims, say experts, with women facing sexual assault in marital relationships being left with few legal options to initiate a criminal case against their abusive husbands.
Since the rape law in IPC exempts married men from being charged with rape of their spouses, victims of marital sexual assault often take shelter of Section 377 IPC (in case of anal rape) and Section 354 IPC (which punishes anyone who assaults or uses criminal force to any woman, intending to outrage her modesty) to lodge a police complaint against their husbands.
With BNS retaining the protection to married men under its new rape provision, a complete omission of IPC Section 377 is being viewed as a matter of grave concern as it gives no remedy to marital rape victims.
Further, BNS also does not cover sexual assault against animals, which Section 377 IPC recognises as a crime. Animal rights activists call it a legal loophole that would hold back law enforcement agencies from acting against bestiality.
With voices growing against the exclusion of Section 377 IPC in BNS, ThePrint explains the Section, how it was read down and the impact its deletion is likely to have.
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History of IPC Section 377
IPC Section 377 was introduced during British rule in India and is modelled on a 1533 law, which was passed by the Parliament of England under the reign of Henry VIII. Called the Act For the Punishment of the Vice of Buggeries, the law had death sentence for “unnatural sexual acts against the will of God”.
In 1566, the Buggery Act was re-enacted and centuries later, in 1828, new laws, such as Offences Against Persons Act, with special focus on male same-sex relationships, were introduced. This criminalised sodomy with a death sentence.
In 1861, the punishment was reduced to a 10-year term in England and Wales.
On 6 October, 1860, the IPC, of which Section 377 was a part, received accent from the Governor General, following its passage by the Legislative Council, and a year later, the law was made applicable to British-ruled India.
Section 377 IPC states: “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 ten years, and shall also be liable to fine.”
According to the explanation, “penetration is sufficient to constitute carnal intercourse”.
SC verdict
Section 377 IPC became a draconian law for members of the LGBTQ community — one that fettered their rights to live with dignity and respect.
The fear of not just social censure, but being prosecuted under Article 377, pushed many to hide their sexual orientations.
In 2001, Delhi-based Naz Foundation — a non-profit organisation that worked to raise awareness around AIDS — filed a plea against Section 377 in Delhi High Court, which was dismissed in 2004.
On an appeal, the Supreme Court in 2006 remitted the matter back to the HC.
Later, in July 2009, a division bench of the Delhi HC read down Section 377 IPC, to hold that the portion of the law that criminalises consensual sexual acts between adults in private violates the Articles 21 (protection of life and personal liberty), 14 (equality before the law) and 15 (equality on grounds of religion, race, caste, sex, place of birth or any of them) of the Constitution.
In December 2013, the top court reversed the HC judgment and revived the section’s application on same-sex adults involved in consensual relationships.
Later, a set of writ petitions were directly filed before the Supreme Court by LGBTQ couples, asking it to strike down Section 377 as unconstitutional.
Finally, in 2018, a five-judge bench led by then Chief Justice of India Dipak Misra unanimously decriminalised consensual sexual acts between two adults, irrespective of their gender.
Pertinently, the ruling made it clear that other aspects of the law, dealing with unnatural sex with animals and children as well as non-consensual sex between adults of the same gender, still remained in force. It was specified that the verdict was confined to consenting acts between two adults.
This clarification, experts say, makes it clear that the SC judgment did not strike down the section in entirety, and that its application continues to other crimes mentioned in it, such as sexual assault on men and bestiality.
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What experts say
Supreme Court advocate Arundhati Katju, who represented well-known Bharatanatyam exponent Navtej Johar in the top court during the 377 hearing, said it is imperative that the government brings in a law to protect men from sexual assault, which, she added, is not acknowledged in BNS.
“Non-consensual acts on men and LGBTQ seems to have been left out from the BNS. Adult men and members of LGBTQ community, who face sexual assault do not have any redressal in the new law,” cautioned Aparna Bhat, another Supreme Court advocate.
Two other lawyers who spoke to ThePrint on condition of anonymity termed the weaknesses in the law as bad news for marital rape victims. “They have no legal protection at all,” one of them said.
The other, who is closely associated with an ongoing case in the Supreme Court which seeks to declare the protection clause for spouses in the rape law as unconstitutional, explained since marital rape is not specifically described as a crime in IPC, women take refuge under sections 377 and 354 it they have been raped by their husbands.
“In cases of anal or other rape, Section 377 is used, while in other cases of criminal assault, which is short of rape, Section 354 is being used. And this is also in line with the training that is now being imparted to judicial academies,” the lawyer said.
“Judges on their own accord have been quite correctly addressing the assault on married women under these provisions. This is because there is no exception under them for sexual assaulters who are married to their victims,” the lawyer added.
Hence, the counsel explained, if Section 377 is also taken away, then the only provisions remaining in the proposed code are not at all designed to address the harm of anal rape — which married women face.
Advocate Alok Hisarwala Gupta, a lawyer and researcher working on LGBTQ as well as animal rights, called for a relook at BNS to cover sexual crimes against animals as well.
“By deleting 377 without proposing an alternate provision based on the motive of sexual violence to cover sexual crimes against animals (and also men) goes to invisibilise the daily reality of non-human animals in our society,” he told ThePrint.
Talking about animal rape, Varnika Singh, a senior legal consultant with the Federation of Indian Animal Protection Organisations (FIAPO) said the absence of a special law addressing the issue is a weakness in the proposed code.
This, she warned, might be exploited by individuals engaging in such acts.
According to her, the Prevention of Cruelty to Animals Act of 1960 does not address cruelty to animals, which could encompass acts of sexual nature against animals.
Therefore, she said, it was important to have more clarity in the criminal legislation so that sexual crime against animals gets covered.
“In the 2021 FIAPO [Federation of Indian Animal Protection Organisations] report ‘In Their Own Right-Calling for Parity in Law for Animal Victims of Crimes’, between 2010 and 2020, we documented approximately 1,000 cases of brutal assault against animals of which 82 were cases of sexual abuse performed by men against animals, often violent and fatal.” Singh highlighted.
(Edited by Richa Mishra)
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