Despite recommendations of a Parliamentary Standing Committee earlier in November, the amended Bharatiya Nyaya Sanhita (BNS), 2023, tabled and passed in the Lok Sabha on Wednesday, 20 December, does not include the Indian Penal Code (IPC) Section 377.
Section 377, which was read down by the Supreme Court in a landmark judgment in 2018, criminalised “carnal intercourse against the order of nature with any man, woman or animal."
While Section 377 remained in the IPC, it could no longer be used to criminalise gay sex between consenting adults, but could still be used as a legal recourse for men who were victims of sexual assault.
The first draft of the bill, tabled on 12 August excluded Section 377. In November, however, the Standing Committee recommended that the bill to include non-consensual sexual acts covered by IPC Section 377 as a criminal offence.
But the absence of this section in the 2.0 version of the BNS Bill could leave adult male victims of sexual assault without much recourse in the law, some experts pointed out.
But First, A Quick Recap of Section 377
Section 377 of the IPC criminalises consensual private sexual acts between adults. In addition to bestiality, this covered any sexual act between people of any gender that isn’t heterosexual penile-vaginal sex, regardless of consent.
While Section 377, which has existed in its current form ever since the IPC came into force in 1860, also covers oral and anal sex among heterosexual couples, it has mostly come to be used against queer and trans persons, often as a targeted method of harassment.
The 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, decriminalised consensual sex between two adults irrespective of their gender and partially read down Section 377.
The apex court, however, said that other aspects of the Section dealing with unnatural sex with animals and children were still effective.
What’s Different in the Bharatiya Nyaya Sanhita?
As per the proposed BNS 2023, the clause of sexual offences listed in Chapter V is limited to “offences against woman and children."
Clause 63 (Rape) in BNS is gendered – which means that it is committed by a man against a woman.
"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 Bill reads.
‘Patriarchal Mindset That Only Women Face Sexual Violence’
“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 protects ‘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 Bill, we are creating a void in the legal system by taking away a lot of these protections and sexual regulations,” Chatterji said.
In the BNS 2023, rape/sexual assault 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 if the Sanhita Bill is passed in its present form, "men will have zero protection towards sexual assault against them."
The exclusion of non-consensual sex between men in Section 63 of the Bill, 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 Bill mentions members of the transgender community only in their definitions and nowhere else. “It is progressive in a way. But the Bill takes away the right of a man/transgender man to prosecute someone under criminal law,” she said.
Tibrewala noted that the BNS Bill does not have a “gender-neutral” language as opposed to Section 377 of the IPC. The lawyer also believed that the Bill turns a “blind eye to same-sex relations."
“Section 377 recognised same-sex relationships. But this Bill 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,” she told The Quint.
If Passed, What’s the Recourse For Men, Trans Persons?
According to Chatterji, entirely omitting Section 377 would lead 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 can use section 352 of the IPC. But it isn’t always accompanied by assault,” she told The Quint.
Chatterji agreed that “we have to use the existing laws such as kidnapping (Section 363 of IPC) and physical assault (Section 352 of IPC) to our benefit." However, she said, “We have to note that the severity of the punishment and offence also changes."
Both Rajmane 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.
"While the punishment under Section 377 is upto 10 years of imprisonment as opposed to two years in the Transgenders Persons (Protection of Rights) Act," said Rajmane.
‘Provision Legalising Marital Rape Retained’
Rohin Bhatt, a Supreme Court lawyer told The Quint that Section 377 also 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 Bill, the provision 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 fifteen years of age, is not rape."
“Though the constitutional validity of marital rape (IPC Section 375) is pending before the Supreme Court, this was the government’s chance to do away with it,” he told The Quint.
An Inclusive Solution?
While introducing the three criminal law bills for the first time the Lok Sabha on 11 August, Union Home Minister Amit Shah suggested that they are meant to move away from the “colonial” remnants in our criminal law.
Chatterji said, “If we really want to decolonise, we have to think of more liberal, democratic and inclusive ways of understanding crimes as well. We must admit that this is only the first draft of the Bill. I am looking forward to the recommendations of the Parliamentary Standing Committee. I hope are able to look into these laws in a very creative and inventive way,” she told The Quint.
Mihir Rajmane believed that the government should create specific offences of every gender. “We should create different offences for different gender victims with equal punishment for all, which I think for a country like India might work better where gender inequality is still something to address,” he told The Quint.
The solution isn’t to remove Section 377 but replace it with something that uses more “inclusive language", said Tibrewala.
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.
Amit Shah had then two other bills to replace The Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872, with the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and Bharatiya Sakshya (BS) Bill, 2023, respectively.
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.
(This story was originally published on 18 August. It has been republished with edits in light of the passing of the three bills – the Bharatiya Nyaya Sanhita Bill, Bharatiya Nagarik Suraksha Sanhita Bill, and Bharatiya Sakshya Bill – in the Lok Sabha on 20 December.)
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