By Srija Singh and Anant Gupta
The Union Home Minister of India has proposed three new laws in the Lok Sabha to replace the Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973 (CrPC). By supporting English material while preserving Hindi terminology, the goal is to revive the nation's criminal justice system. The Bhartiya Nyaya Sanhita Bill, 2023 (BNS) does not, however, include IPC Section 377, which prohibits "carnal intercourse against the order of nature with any man, woman, or animal." Consensual homosexual conduct between adults is no longer considered to be a crime under this law, which the Supreme Court read down in 2018. Some experts contend that by leaving out this clause, adult male sexual assault victims may have fewer legal options. The historical significance of Section 377, which Thomas Macaulay authored in 1838, has been a disputed subject in India.
"Homosexuality is not a mental disorder"-Justice Nariman
The Union Home Minister of India has proposed three new laws in the Lok Sabha to replace the Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973 (CrPC). These bills illustrate the government's deliberate attempts to express the terminology in Hindi while retaining the substantive content in English, seemingly as a way to distance itself from the perceived impact of 'English laws' (although the exact methods of achieving this intended separation remain somewhat mysterious).
It becomes essential to redirect our attention towards the particular and significant changes introduced by these Bills. Initially, these alterations may seem to involve a restructuring of current Sections, a characterization that holds a fair degree of accuracy. Nevertheless, upon a more thorough review, these revisions notably stumble in the crucial domains.
The Bhartiya Nyaya Sanhita Bill, 2023 (hereinafter referred to as BNS), the proposed replacement for the IPC to consolidate and amend provisions related to offences and connected matters does not contain IPC Section 377 - which mentioned “carnal intercourse against the order of nature with any man, woman or animal”. While keeping Section 377, which pertains to 'unnatural offences,' it can no longer be employed to deem consensual homosexual activity between adults as a criminal offence. However, some experts have pointed out that the omission of this section in the BNS could result in limited legal options for adult male victims of sexual assault.
SECTION 377
Section 377 of the 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.”
Explanation of the section provides that “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”.
Section 377 of the IPC makes consensual private sexual activities among adults illegal. This encompasses a broad range of sexual acts between individuals of any gender that deviate from heterosexual penile-vaginal intercourse, even when consent is present.
Despite originally addressing various sexual acts among heterosexual couples, Section 377, which has remained unchanged since the inception of the IPC in 1860, is predominantly employed to discriminate against and harass homosexuals and transsexuals.
HISTORICAL VIEW
In the year 1861, the British Raj implemented section 377, which had its origins dating back to 1838 when Thomas Macaulay drafted it. It was subsequently enforced in 1861. This legislation was inspired by the Buggery Act of 1533, which defined 'buggery' as an unnatural sexual act contrary to the laws of nature and religion.
In 2001, an NGO called Naz Foundation filed a petition in the Delhi High Court challenging the constitutionality of Section 377, which was dismissed. In 2006, the Supreme Court directed the Delhi HC to hear the case. The High Court in its 2009 verdict held that “Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”.
However, in 2013, the verdict was set aside by the supreme court stating that the high court was “legally unsustainable”, and that it had “overlooked that a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted”.
In 2014, the Indian Supreme Court's two-judge panel made a judgement in the NALSA (National Legal Services Authority) case that recognised "transgender individuals" as belonging to the "third gender." The court confirmed that transgender people have the same fundamental constitutional rights as everyone else. The NALSA ruling gave people the freedom to choose whether they wanted to self-identify as male or female and gave them the ability to pursue their political, economic, and legal rights in court.
In the 5-judge bench judgment led by then Chief Justice of India Dipak Misra on a petition initiated by Bharatnatyam dancer Navtej Singh Johar, reached a unanimous decision to decriminalize consensual sexual relations between adults, regardless of their gender. This landmark ruling also involved the partial removal of Section 377 from the Indian Penal Code. The apex court criticized the portions of Section 377 that deemed consensual unnatural sex as “irrational, indefensible and manifestly arbitrary.” The court emphatically stated, “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights.”
CONSTITUTIONALITY:
According to the Supreme Court ruling in the Suresh Kumar Koushal case, which re-criminalized "unnatural sex." The provision of the IPC has had a collateral effect in that consensual sex between LGBT people is criminalized and violates Article 14. Following that, Justice Nariman gave his decision, saying that the Suresh Kumar Koushal decision was no longer a good law considering the NALSA and Puttaswamy decisions. He went on to say that homosexuality cannot be regarded as a mental disorder" and added that "homosexuals have the right to live with dignity”.
After Justice Nariman, Justice Chandrachud gave his decision, noting that Section 377 causes tragedy and suffering and must be changed. This case involves far more than just decriminalising a provision. “It is about aspirations to realise constitutional rights and the LGBT community's equal existence as other citizens," Chandrachud remarked. He also mentioned last year's right-to-privacy ruling, saying, "To deny the LGBT community their right to sexual orientation is a denial of their citizenship and a violation of their privacy."
We declare that section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private, is a violation of Articles 21, 14, and 15 of the Constitution, said a division bench of the Delhi High Court (Naz Foundation vs Government of NCT of Delhi and others). This comfort, however, was fleeting. The Delhi High Court's decision was challenged by the Supreme Court, which reversed it in December 2013.
HOW THE REPEAL WILL AFFECT THE CRIMINAL JUSTICE SYSTEM
Certain groups, notably male victims of sexual assault, have been warned that if the Bill is enacted in its current form, they will lose legal protection. While this is also the case under the IPC, Section 377 of the IPC, which mentions "carnal intercourse against the order of nature with any man, woman, or animal," does protect non-minor males from rape. This part has been removed from the planned BNS. Recently, there have been various changes due to the introduction of “Bhartiya Nyay Sanhita” in 2023. There is no provision in the planned Bharatiya Nyaya Sanhita, 2023, to protect male victims of sexual assault. [3]The IPC now protects "man, woman, or animal" from such acts of violence. If the Bharatiya Nyaya Sanhita, 2023 is enacted in its current form, males may lose their legal protection. Non-minor males were protected from rape under IPC Section 377. This section has been removed from the proposed Bharatiya Nyaya Sanhita, 2023 Bill.
[4]Rape is covered under Section 63 of the proposed Bharatiya Nyaya Sanhita, 2023. Certain populations, particularly male victims of sexual assault, may lose legal protection if the Bharatiya Nyaya Sanhita, 2023 Bill is enacted in its current form, according to critics. This is because the proposed BNS's definition of "rape" is gendered, implying that crime can only be committed by a male against a woman.
BOON OR BANE
Certain groups, particularly male victims of sexual assault, have been warned that if the Bill is passed in its current form, they will lose legal protection. While this is also true under the IPC, Section 377, which prohibits "carnal intercourse against the order of nature with any man, woman, or animal," does protect non-minor males from rape. This section has been removed from the proposed BNS.
The IPC Section 375 supplies seven conceptions of consent that, when broken, constitute the crime of rape by a male. Rape is addressed under Section 63 of the draught BNS. Unlike the proposed BNS, which would move the subhead "Of Sexual Offences" under Chapter V of the Sanhita, which is specifically about "Offences Against Women and Children," Section 375 (and Section 376, which outlines the sentence for rape) are put under the subhead "Sexual Offences" in Chapter XVI of the Code, "Of Offences Affecting the Human Body."
The planned BNS, on the other hand, references "unnatural lust" at least twice. The right to private protection of one's body, according to Section 38, includes the voluntary infliction of death or severe pain on the attacker if the crime that "occasions the exercise of the right is an assault to gratify unnatural lust." Kidnapping or abducting a person to submit or put them "in danger of being subjected to grievous hurt, slavery, or the unnatural lust of any person" is punishable under Section 138(4).
NEW OUTLOOK
“Retain adultery as a gender-neutral criminal offence”.
Gender neutrality is promoted by advocating that Section 497 of the IPC, which was ruled down by the Supreme Court in 2018, be kept in the proposed law by "making it gender neutral." A person who has sexual relations with a married woman without her husband's agreement or connivance is guilty of adultery under Section 497. This was punishable by jail, fine, or both, but the lady was not.
While overturning the statute, the Supreme Court stated that it was outdated, arbitrary, and paternalistic, infringing on a woman's autonomy, dignity, and privacy, and reducing the married lady to being her husband's property. In this regard, the committee believes that the institution of marriage is sacrosanct in Indian society and that there is a need to protect its integrity. This clause should be kept in the Sanhita by making it gender-neutral to protect the institution of marriage.
WAY FORWARD
Same-sex relationships were recognised under Section 377. The absence of part 377 will allow perpetrators to get away with the crime because they do not come under any specific portion of the law. It will cause a lot of confusion; the government should create specific offences for each gender. “With equal punishment for all, which I think for a country like India might work better where gender inequality is still something to address”.
This article is authored by Srija Singh, a third-year law student at Amity Law School, Noida. The article is co-authored by Anant Gupta, a third-year law student at National Law University, Jabalpur.
[1] MANU/SC/0309/2014 (National Legal Services Authority (NALSA) vs. Union of India (2014)
[2] MANU/SC/0947/2018 (Navtej Singh Johar vs. Union of India (2018)
[3]Same-Sex Marriage and Equality by Reginald Williams available at https://www.researchgate.net/publication/257560766_Same-Sex_Marriage_and_Equality Last accessed on 17th May 2021
[4]Accepting the unacceptable: Same-sex marriage around the world, 2020, Burnished Law Journal, Vol-1, Issue -2, ISSN - 25822-5534, retrieved from manupatra.com.
REFERENCES
· Removal of Section 377 of IPC and Its Consequences, https://vajiramias.com/article/removal-of-section-377-of-ipc-and-its-consequences/64dc6dd66ea8102993045147/.
· Khadija Khan, Section 377 is gone, but some fear the proposed Bharatiya Nyaya Sanhita does not protect men against rape. This is why., The Indian Express (Aug. 13, 2023), https://indianexpress.com/article/explained/explained-law/section-377-bharatiya-nyaya-sanhita-men-rape-8890847/.
· Aneesha Mathur, Section 377 out, the new bill also does not protect men against sex assault, India Today (Aug. 11, 2023), https://www.indiatoday.in/law-today/story/section-377-dropped-in-bill-no-punishment-for-unnatural-sex-offences-against-men-2419706-2023-08-11.
· From 1861 To 2018: Looking Back at India's Struggle to Repeal Section 377 That Allows Living and Loving Freely https://thelogicalindian.com/lgbtq/history-of-section-377-in-india-lgbtq-35940
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