Author: Vanshika Mangla, Christ university, Bangalore
ABSTRACT
This article delves into understanding the implications associated with repealing of Section 377 of IPC in BNS. It highlights the repeal of Section 377 which earlier criminalized non-consenting unnatural sex and provided protection to males, homosexuals and animals. This article explores the historical development with respect to the interpretation of this provision. It focuses and discusses relevant judgments like Navtej Singh Johar v Union of India and Naz Foundation v State of NCT of Delhi which played a major role in shaping the interpretation of Section 377 of IPC. It further discusses the lack of protection to male and homosexual victims under BNS and the need to come up with new laws to grant them protection.
KEY WORDS- Historical development, Implications, Male and homosexual victims, Unnatural Sex
ARTICLE
Indian Penal Code, 1860, the long running criminal code of India has been replaced by Bhartiya Nyaya Sanhita (BNS) with effect from July 1, 2024. Although BNS retains most of the prominent sections of IPC, certain sections have not been included in BNS and thus repealed. One of such provisions is Section 377 of IPC which deals with unnatural offences. As per Section 377 of IPC, it is a criminal offence to voluntarily engage in a sexual activity with a man or woman or animal which is not in accordance with the order of nature and punishment has been defined for the same. It is pertinent to note here that unnatural sex refers to a sexual activity where there is no possibility of procreation. Hence, sexual intercourse between two men or two women or a man and an animal are considered unnatural sex and hence, punishable as per this provision. The concept of consent becomes an important question for dispute in this provision as the provision clearly uses the term “voluntarily”. This section criminalizes voluntary engagement in sexual activity with the person of the same sex. The rights of the LGBTQ+ community come into question here. The section has been challenged multiple times in the past to check its constitutional validity.
In the 1990s, Aids Bhedbhav Vidrohi Andolan (ABVA) filed a petition before the Delhi High Court challenging the validity and legality of Section 377 of IPC. ABVA published a report named ‘Less than gay: A citizen’s report’ which spoke about the lives of people belonging to the LGBTQ+ community. It broke the silence surrounding homosexuality and encouraged them to come out of their shells. It stood for rights of the LGBTQ+ community. This collective found Section 377 of IPC to be violative of the rights of the homosexuals and hence filed a petition challenging its legal validity. However, the Delhi High Court approved the constitutional validity of Section 377.
Although this was a regressive judgment, later developments were made with respect to the interpretation of Section 377 of IPC. Naz Foundation v NCT of Delhi is the first judgment which decriminalized Section 377 of IPC. In this case, a petition was filed by an NGO- Naz Foundation contending that Section 377 of IPC violated Article 14 and 21 od the Indian Constitution. Delhi High Court was of the opinion that Section 377 violated Article 14 of the constitution as it categorized people on the basis of their sex. This was against the very basis of equality established under the Indian Constitution. Further, the Delhi High Court decided that it infringed Article 21 of the Indian Constitution as consensual sex between two persons, be it of the same sex, was a matter of their privacy under Article 21 of the Constitution. Hence, Delhi High Court struck down Section 377 of IPC.
This verdict was challenged in the case of Suresh Kumar Koushal v Naz Foundation. The Supreme Court was not satisfied with the contention of the respondent with respect to the abuse by the government against those belonging to the LGBTQ+ community. Supreme Court was of the view that just because a small group of people have suffered abuse from government, this does not render the section as unconstitutional. Hence, this section was restored in the present case.
Another relevant judgment in this context is National Legal Services Authority (NALSA) v Union of India. This case recognized gender identities and sexual orientation. Although there was no reference to Section 377, it recognized the wide spectrum of gender identities, not being limited to male and female. It upheld the rights of the LGBTQ+ community.
The interpretation of Section 377 of IPC before being repealed in the BNS owes its birth to the case of Navtej Singh Johar v Union of India. Supreme Court by applying the Doctrine of Severability, read down Section 377 of IPC. The Apex Court upheld the rights of the LGBTQ+ community and said that they had the same rights as others. It made a distinction between consensual and non-consensual unnatural sex. It decriminalized unnatural sex between consenting major persons. Non-consenting unnatural sex and unnatural sex with animals were kept outside the purview of decriminalization. They were still covered as offences under Section 377 of IPC.
Navtej Singh Johar v Union of India is indeed a milestone judgment with regard to interpretation of Section 377 of IPC as it highlights the importance of the concept of ‘consent’. Section 377 has been correctly read down for criminalizing non-consenting unnatural sex. Since men have no protection under IPC or any other statute for unnatural sex committed against them, this provision provided them with adequate protection.
In the current scenario, BNS has repealed this section. It is no more in existence. This becomes a point of concern as the only remedy available to men and transgenders against unnatural sex has been taken away. Animals, nevertheless still have protection under legislations such as Prevention of Cruelty to Animals Act, 1960, etc. Minor males still have protection against unnatural sex under Protection of Children from Sexual Offences (POCSO) Act, 2012, but what about major males?
IMPLICATIONS OF THE REPEAL-
The BNS has sparked a lot of controversies with respect to lack of adequate protection of certain groups against unnatural offences. Repeal of Section 377 of IPC in BNS clearly highlights the absence of legal protection to male and homosexual victims of sexual assault. There is no other law in place to provide them with appropriate remedy. This is clearly discriminatory against persons who are male or transgenders. Female population still have protection against rape as per Section 63 of BNS. The repeal of Section 377 of IPC in BNS removes the only protection which was available to men and homosexuals. Animals still have adequate recourse under special laws but not men.
Another repercussion of repealing Section 377 of IPC could be lesser accountability for unnatural sex offences against men or homosexuals. Since there is no law anymore in BNS which criminalizes the same, the perpetration of sexual violence against men and homosexuals is bound to increase on a larger scale. To think that men can only be perpetrators and not victims of sexual offences is ridiculous. Even men and homosexuals can be subject to sexual violence. Not having any law in place for protecting them against sexual offences is only likely to increase the number of male and homosexual victims.
WAY FORWARD-
One of the problems related to protection of male population from sexual offences is the social stigma attached to it. It is generally presumed and believed that only women are subject to sexual offences and thus are the victims. There is no recognition to the fact that even men can be subject to the same. When a woman tells that she has been subject to sexual violence, everyone takes stand for her, but unfortunately this is not the same case with men. If a man comes and tells that he has been subject to sexual offences, people will make fun of him and the police won’t file a case. The social perspective on sexual violence is problematic which needs to be changed.
Not including provisions for protection of men and homosexuals against sexual unnatural offences clearly depicts that these crimes are not treated to be of serious and grave nature. To tackle the current issue, there should be a law in place which criminalizes even the sexual offences against men and homosexuals. Men and homosexuals are deserving of equal protection against sexual offences. Hence, a law should be brought in which provides protection to all against sexual offences.
CONCLUSION
The repeal of Section 377 of IPC in BNS raises a very serious concern with respect to the lack of legal protection of males and homosexuals against sexual violence. By not including the provision in BNS, the lawmakers have given birth to loopholes in the law which can be highly misused. This oversight increases the vulnerability of these groups to sexual offences and reinforces the social stigma attached to it. In order to ensure justice and equality, it is pertinent that there should be a law in force which provides for adequate protection of even the males and homosexuals against sexual offences. This is important to ensure protection of all individuals irrespective of their sexual orientation.
