How the Bharatiya Nyaya Sanhita 2023 Fails Male and Transgender Rape Survivors
On 21st December 2023, The Bharatiya Nagarik Suraksha Sanhita Bill, 2023, the Bharatiya Nyaya Sanhita Bill, 2023, and The Bharatiya Sakshya Adhiniyam Bill, 2023 were ratified by Parliament. These Bills are poised to supersede the Criminal Procedure Code, 1973, the Indian Penal Code, 1860, and the Indian Evidence Act, 1872, respectively. Following the President’s assent on 25th December 2023, these legislative enactments are slated for implementation from 1st July 2024.[i]
Prime Minister Narendra Modi lauded the passage of these Bills, characterising it as a “watershed moment in our history.” He accentuated that these new statutes denote the cessation of colonial-era laws and herald a new epoch centered on public service and welfare.
One of the cardinal amendments introduced by the Bharatiya Nyaya Sanhita is the abrogation of Section 377 of the IPC, which hitherto criminalised “unnatural” sexual activities, including consensual homosexual acts. This abrogation has incited concerns pertaining to the safeguarding of men and transgender individuals from rape, as the new legal framework does not explicitly address non-consensual sexual offences against these demographics.
SECTION 377 AS A GUARDIAN TO MALES AND TRANSGENDERS FROM RAPE
Section 377 of the Indian Penal Code (IPC) plays a pivotal role in safeguarding men and transgender individuals from sexual violence, providing a gender-neutral framework that addresses rape and sexual assault. Historically, Section 377 criminalised “carnal intercourse against the order of nature,” often targeting consensual homosexual relationships.
However, following the landmark 2018 Supreme Court judgment decriminalising consensual same-sex relations, Section 377 now exclusively pertains to non-consensual acts, including sexual assaults on men and transgender individuals.[ii]
This gender-neutral provision is particularly significant as it recognises that men and transgender individuals can be victims of rape, a recognised conspicuously absence in other legal provisions predominantly focused on female victims. In stark contrast, Section 18 of the Transgender Persons (Protection of Rights) Act, 2019, while addressing crimes against transgender individuals, stipulates a maximum punishment of a mere two years for sexual offences.
This disparity accentuates the critical importance of Section 377, which does not impose a cap on the maximum punishment, thus allowing for more severe sentences that better reflect the gravity of such crimes.
MEN AND TRANSGENDERS AS AN IGNORED CLASS
The issue of sexual crimes against men and transgender individuals remains egregiously neglected, evidenced by the National Crime Records Bureau’s (NCRB) failure to release any pertinent statistics. In the landmark case of National Legal Services Authority v. Union of India, the Supreme Court acknowledged transgender individuals as a third gender.[iii]
However, despite this significant judicial recognition, the NCRB has conspicuously refrained from publishing data on offences committed against transgender individuals. This omission underscores a profound gap in the systemic acknowledgment and protection of these vulnerable groups.
There have been numerous efforts to render sexual offences gender-neutral and to ensure gender justice. Many experts have recommended making these laws inclusive of all genders, but these suggestions have failed to yield tangible results.
In its report submitted in January 2013, the Justice J.S. Verma Committee proposed several significant changes, including the imperative need to make rape laws gender-neutral. The committee underscored that sexual assault affects not only women but also men, boys, and transgender individuals.
This recommendation aimed to foster inclusivity and provide comprehensive legal protection for all individuals, regardless of gender.[iv] However, the suggestion was not implemented, citing concerns about safeguarding women from discrimination by men.
Similarly, the Parliamentary Standing Committee of the Bharatiya Nyaya Sanhita (BNS) also advocated for making certain offences under the BNS gender-neutral. This proposal, notably championed by MP Mahua Moitra, emphasised the need for a gender-neutral approach to ensure extensive protection and justice for all victims of sexual violence, including men and transgender individuals.[v] Nevertheless, these recommendations were ultimately rejected.
HISTORY OF PARTIAL ABROGATION OF SECTION 377 OF IPC
Section 377 of the Indian Penal Code (IPC) was incorporated in the original draft by Lord Macaulay. Section 377 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.” This section was regressive as it penalised intercourse between two male adults, thereby infringing upon the privacy and autonomy of the LGBT community.
In its 172nd Report in 2000, the Law Commission of India suggested amendments to the rape laws of India. It recommended changes to Sections 375 to 376D of the IPC and the insertion of Sections 375E and 376E, distinguishing between consensual and non-consensual acts between adults, and suggested the removal of Section 377. The Commission emphasised that the law should focus on protecting individuals from non-consensual and abusive sexual conduct rather than regulating private consensual behaviour.[vi]
In 2009, the Delhi High Court, in Naz Foundation v. Government of NCT of Delhi, severed Section 377, declaring it unconstitutional to the extent that it affected private sexual affairs of consenting adults. The court held: “Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”[vii]
However, this victory was short-lived. In 2014, the Supreme Court in Suresh Kumar Koushal and Anr. v. NAZ Foundation and Ors. held that Section 377 merely described an offence and stipulated punishment for it. The judges asserted that the section was not violative of the fundamental rights enshrined in the Constitution and deferred to Parliament to enact the necessary changes suggested by the Attorney General of India.[viii]
The Supreme Court in 2018 finally settled the law in Navtej Singh Johar v. Union of India by decriminalising consensual homosexual acts between adults, partially striking down Section 377 of the IPC. The Court held that Section 377, insofar as it criminalised consensual sexual conduct between adults, violated fundamental rights guaranteed by the Constitution, including Article 14, Article 19 Article 21 of the Indian Constitution. The judgment recognised the dignity, autonomy, and identity of LGBTQ+ individuals, stating: “History owes an apology to members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” The Court affirmed that “the constitution is a living and organic document capable of expansion with the changing needs of the times.”[ix]
REMOVAL OF SECTION 377 FROM THE BHARATIYA NYAYA SANHITA, 2023
The legislative odyssey of The Bharatiya Nyaya Sanhita, 2023, embarked upon a profound parliamentary discourse and scrutiny. The Bharatiya Nyaya Sanhita Bill, heralded by Union Home Minister Amit Shah on 11th August 2023, underwent meticulous examination by the Department-related Parliamentary Standing Committee on Home Affairs. This committee conscientiously engaged with diverse stakeholders and proffered its report, replete with recommendations, on 10th November 2023 which among other instrumental inclusions for female populace, also included excision of section 377 of the IPC.[x]
The committee advocated for the retention of Section 377 in a gender-neutral guise to encompass non-consensual carnal intercourse, carnal intercourse involving minors, and acts of bestiality. This proposition resonates with the ethos of the Supreme Court’s 2018 verdict, which decriminalised consensual homosexual unions whilst preserving provisions pertinent to non-consensual acts and those involving minors and animals.
Despite the successful passage of the Bill, dissenting voices from the opposition articulated their apprehensions regarding the absence of a parallel provision akin to section 377 of the IPC within the BNS. Adhir Ranjan Chowdhury, P Chidambaram, and Derek O’Brien, leveraging expert opinions from legal luminaries, contested that the indispensable safeguards accorded by Section 377 to men and transgender individuals against sexual assault were inadequately substituted or addressed in the new legislation, thereby rendering these demographic cohorts vulnerable.
WAY FORWARD
It is imperative to acknowledge that India urgently requires gender-neutral laws. The Bharatiya Nyaya Sanhita, 2023, is set to be enforced from 1 July 2024. However, to ensure equal protection under the law for all genders, amendments are essential. Either a provision similar to Section 377, which criminalises non-consensual carnal intercourse, must be added, or the existing offences against women should be rendered gender-neutral. This would guarantee the protection of all three genders and uphold the bodily autonomy rights of men and transgender individuals.
The endeavour to make sexual offences gender-neutral will undoubtedly present unique challenges, and the drafters need to be vigilant about the consequences of its implementation to ensure that the cost is not disproportionately borne by women. It is crucial to strike a delicate balance, as failing to do so could be akin to robbing Peter to pay Paul. Ensuring gender neutrality in sexual offence laws should enhance protection and justice for all without compromising the hard-won rights of women.
CONCLUSION
The excision of Section 377 from the Bharatiya Nyaya Sanhita, 2023, without a cogent substitute, engenders a significant lacuna in the legal protection afforded to male and transgender rape survivors. As Justice Leila Seth poignantly articulated, “Equality is not just about equal treatment, but about ensuring that all individuals have the opportunity to thrive.” This underscores the imperative need for comprehensive, gender-neutral statutes that address non-consensual sexual acts against all individuals, irrespective of gender.
By incorporating such provisions, India can ensure that its legal framework truly embodies the principles of justice and equality. It is imperative that lawmakers rectify this oversight to prevent the marginalisation of male and transgender victims, ensuring their rights to bodily autonomy and protection from sexual violence are unequivocally upheld. The pursuit of gender justice necessitates vigilance, inclusivity, and an unwavering commitment to the dignity and rights of all individuals.
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[i] https://www.pmindia.gov.in/en/news_updates/passage-of-bharatiya-nagarik-suraksha-sanhita-2023-bharatiya-nyaya-sanhita-2023-and-bharatiya-sakshya-adhiniyam-2023-is-a-watershed-moment-in-our-history-pm/
[iv] Report of the Committee on Amendments to Criminal Law, 2013.
[v] Parliamentary Standing Committee on The Bharatiya Nyaya Sanhita Bill, 2023.
[vi] Law Commission of India, “Review of Rape Laws in India” (Report no. 172 of 2000).
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This article was written and submitted by Manik Singhal during his course of internship at B&B Associates LLP. Manik is a 2nd-year B.A.LL.B (hons.) student at the RGNUL, Punjab.
