The Bharatiya Nyaya Sanhita (BNS), which is among the three new criminal laws that came into effect on Monday, 1 July, lacks a section equivalent to Section 377 of the now defunct India Penal Code (IPC).
Why does that matter?
Because, although Section 377 (unnatural offences) could no longer be misused to criminalise gay sex between consenting adults after the Supreme Court's landmark judgment in 2018, it was still being used as a legal recourse for men who were victims of sexual assault.
Despite a Parliamentary Committee’s recommendation in November 2023 to retain these provisions, exclusion of Section 377 in BNS has left adult male victims of sexual assault without much recourse in the law, experts point out.
A Quick Recap of Section 377
Section 377 of the IPC criminalised consensual private sexual acts between adults. In addition to bestiality, it covered any sexual act between people of any gender that wasn’t heterosexual penile-vaginal sex, regardless of consent.
While this section covered oral and anal sex among heterosexual couples, it had mostly come to be used against queer and trans persons, often as a targeted method of harassment.
The now removed section read: “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.”
Section 377 had been a matter of debate for decades, with the LGBTQIA+ community arguing that the law was discriminatory. In a landmark judgment on 6 September 2018 (Navtej Singh Johar v Union of India), the Supreme Court, led by then Chief Justice of India Dipak Misra, had decriminalised consensual sex between two adults irrespective of their gender and partially read down Section 377.
The apex court, however, had said that other aspects of the section dealing with unnatural sex with animals and children were still effective.
What’s Different in the BNS?
In the newly implemented BNS, the clause of sexual offences listed in Chapter V is limited to “offences against woman and children."
"Whoever, except in the cases provided for in sub-section (2) (marital rape), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine," the law states.
“The apex court only read down consensual sex between two adults of the same gender of Section 377. It is important to note that the section still protected ‘man, woman or animal’ against sexual acts of violence,” Ujjaini Chatterji, a Supreme Court advocate, told The Quint.
The reason for the court to read down Section 377 was to include sexual minorities and understand their needs, she explained.
“By not including Section 377 in the new (BNS) law, we are creating a void in the legal system by taking away a lot of these protections and sexual regulations,” Chatterji said.
Clause 63 (rape) in BNS has been given a gendered connotation with a "man" as a perpetrator and "woman" as victim. This, Chatterji said, came from a “patriarchal” and “presumptuous” mindset that men can’t be in vulnerable positions.
Mihir Rajamane, an independent researcher based out of Bengaluru, told The Quint that the exclusion of Section 377 will lead to men have "zero protection towards sexual assault against them."
The exclusion of non-consensual sex between men in Section 63 of the BNS, experts believed, would create an unequal system of law for queer men and members of the transgender community.
“Yes, women are most often victims of sexual violence and are marginalised and vulnerable. But with this, we create an unequal system where we don’t attribute to the gravity of pain caused by offences against queer men and members of the transgender community,” Chatterji said.
“The government recognises that there exists a wide range of people, but refuses to provide protection to all,” Rajamane said.
Muskan Tibrewala, a Delhi-based lawyer, told The Quint that the BNS mentions members of the transgender community only in their definitions and nowhere else. “It is progressive in a way. But the law takes away the right of a man/transgender man to prosecute someone under criminal law,” she said.
Tibrewala noted that the BNS does not have a “gender-neutral” language as opposed to Section 377 of the IPC. The lawyer also believed that BNS turned a “blind eye to same-sex relations."
“Section 377 recognised same-sex relationships. But the BNS does not acknowledge intercourse between two men/women, instead only talks about rape of a woman by a man… This comes from a heteropatriarchal concept,” the lawyer said.
"Section 375 of the IPC used to cover sexual assault of all kinds, but only covers where the man is a perpetrator, and woman is a victim. Basically all sexual relationships that don't follow in the man-woman paradigm, will still not have recourse to punishment for sexual assault. Sections corresponding to physical assault can be added, but that of sexual assault is not recognised unless it's a man perpetrator or a woman victim... This means that there is nothing for a man who is a victim, and the woman who is a perpetrator. They can only go under physical assault."Muskan Tibrewala to The Quint.
What’s the Recourse for Men, Trans Persons?
According to Chatterji, the omission of Section 377 has led to perpetrators getting away with the crime as they do not fall under any particular section of the law. “It is going to create a lot of confusion,” she said.
Jeet, founder of Yes, We Exist, an LGBTQ+ rights advocacy initiative, asked what the recourse would be for queer men vulnerable to sexual assault. “Now, if they go to the police station, under what provision will they file the case under? None of the other sections have similar penalty as Section 377 had,” he said.
Tibrewala explained that lawyers will have to bring in other sections of the law to fight the case.
“If rape is accompanied by physical assault, then one would have to use Sections 114 to 117 of the BNS – 114 (hurt), 115 (voluntarily causing hurt), 116 (grievous hurt), and 117 (voluntarily causing grievous hurt) of BNS Act. In addition, Sections 131 (punishment for assault or criminal force otherwise than on grave provocation) and 351 (criminal intimidation) can be used," she said.
Agreeing with Tibrewala, Chatterji said:
“We have to use the existing laws against the human body such as Section 117 (voluntarily causing grievous hurt), Section 126 (wrongful restraint and confinement), Section 137 (kidnapping), Section 138 (abduction), Sections 131-135 (assault), and Section 143 (trafficking of persons) to our benefit."Ujjaini Chatterji to The Quint
However, she said, “We have to note that the severity of the punishment and offence also changes."
Both Tibrewala and Jeet said that while there is protection under Transgender Persons (Protection of Rights) Act, 2019, the severity of punishment was not as much as what is mentioned for offences against women.
"If a trans person is a victim, then the sexual assault will be punishable under Section 18 of the Trans Act. But the problem with this is that the punishment under this section is somewhere between 6 months and two years, which is very low," Tibrewala told The Quint.
‘Provision Legalising Marital Rape Retained’
Rohin Bhatt, a Supreme Court lawyer told The Quint that Section 377 had protected wives who were forced to have anal or oral intercourse with their husband.
“There were many cases where wives, who were forced to have anal or oral intercourse with their husband, which is protected under the martial rape exception, chose to file a case under Section 377. This was because their case still came under ‘unnatural sexual intercourse',” Bhatt said.
In the BNS, the provision of legalising martial rape has been retained. Exception 2 of Section 375 of the IPC (marital rape) states that “sexual intercourse by a man with his wife, and if the wife not being under 15 years of age, is not rape."
In August 2023, the BJP government first proposed the BNS as a means to replace the colonial-era Indian Penal Code (IPC), 1860, a set of laws that define and prescribe punishments for crime in India.
The bills were introduced to overhaul the existing Indian criminal laws and has several provisions for the protection of women and children against sexual offences. The bills were passed on 21 December 2023 and were implemented on 1 July 2024.
(This piece has been updated and republished from The Quint's archives as the new criminal laws came into effect on 1 July. It was originally published on 18 August 2023.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)