Omission of IPC Section 377 from Bharatiya Nyaya Sanhita: Two steps backwards in the fight towards gender-neutral offences

Bharatiya Nyaya Sanhita has no provision which addresses or deals with sexual crimes against men and transgenders.

ByAnurag Tiwary

Published Jun 30, 2024 | 6:00 PM Updated Jun 30, 2024 | 6:00 PM

Bharatiya Nyaya Sanhita

In 2018, when a five-judge bench of the Supreme Court was considering the Constitutional validity of Section 377 of the Indian Penal Code (IPC) in Navtej Singh Johar vs Union of India, it read down the provision in so far as it criminalised consensual sexual acts between adults of the same gender.

However, the court purposefully did not strike down the provision entirely.

Even after the Navtej Johar judgement, Section 377 continued to govern non-consensual sexual acts against men and transgenders as well as acts of bestiality.

This was particularly important because it was the only provision in the IPC that addressed the concern of sexual crimes against men and transgenders.

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Totally ignored in BNS

However, the Bharatiya Nyaya Sanhita (BNS) 2023, which replaces the erstwhile IPC, repeals Section 377 entirely. The new Act has no provision which addresses or deals with sexual crimes against men and transgenders. This omission is not accidental.

The Parliamentary Standing Committee on Home Affairs, which was tasked with reviewing the three new criminal laws, had recommended retaining Section 377 in so far as it criminalises non-consensual carnal intercourse against men and transgenders and acts of bestiality.

This, the committee said, was in line with the BNS’s Statement of Objects and Reasons, which “inter-alia highlights the move towards gender-neutral offences”.

However, despite the said recommendation, the provision has been left out of the statute, which is set to come into operation on 1 July.

Transgender Persons Act

After the repeal of the IPC, under the existing legal framework, transgender persons can only resort to the ‘Transgender Persons (Protection of Rights) Act, 2019’.

The Act criminalises physical, sexual, verbal, emotional and economic abuse of transgenders with a punishment for a term which shall not be less than six months and may extend to two years with a fine.

However, this provision does little to address the problem.

  • Firstly, it imposes imprisonment for a maximum of 2 years as opposed to a provision of life imprisonment in Section 377 of the IPC.
  • Secondly, the offence under the 2019 Act is bailable, whereas Section 377 was non-bailable.
  • Finally, the 2019 Act does not define what physical, sexual, verbal, emotional and economic abuse would mean and thereby leaves room for varying interpretations and misuse by law enforcement agencies.

Effectively, the 2019 Act only trivialises the problem and does very little to address the concern.

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Sexual crimes against men

For men too, who are victims of sexual crimes, there are very few remedies under the existing legal framework and none addressing the crime at all.

In the IPC, the title of the provisions relating to sexual offences were gender-neutral viz. “Of Offences Affecting the Human Body” and “Sexual Offences”.

However, under the BNS these offences are titled as “Offences Against Woman and Children”.

This takes away any scope of any favourable future interpretation in the law to make the provisions gender-neutral.

Furthermore, men who are victims of such crimes, and choose to report them, can only resort to the provision of “grievous hurt” under the new law.

The omission of recognition and protection for male and transgender victims of sexual crimes under the new penal law can lead to serious repercussions, including a violation of their constitutional and legal rights.

Underrepotred due to societal stigmas

Sexual crimes against men and transgender persons, even in the existing legal framework, are significantly underreported, partly due to societal stigma and the lack of any meaningful acceptance within the criminal justice system.

This often leaves victims living with trauma and fear of future victimisation.

To address these issues, it was essential for the government to create a more inclusive and supportive environment that encourages all victims, irrespective of their gender, to come forward, report crimes and seek justice.

It was also important to initiate training programs for law enforcement agencies, establish dedicated support services for victims of such crimes and improve data collection mechanisms to better understand the intensity of the crime.

This would have also ensured that our criminal justice system truly upholds the rights and dignity of all individuals, irrespective of their gender.

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A step in the wrong direction

However, the BNS has taken a step in the wrong direction thereby creating a huge void in the law, virtually leaving room for a crime to be committed without any redressal.

It has also undone the significant milestones reached by the transgender community over the last two decades in gaining legal recognition of their distinct identity.

Going forward, the Parliament must consider bringing an amendment and introducing the provision again into the BNS.

If the Parliament decides otherwise, the Supreme Court must step in.

The basis is the top court’s conclusion in the Navtej Johar judgment that Section 377 of the IPC would continue to govern non-consensual carnal intercourse against men and transgenders and acts of bestiality.

The court had effectively recognised a need for the law to stay, which is why instead of striking it down, it had only read down the provision partially.

(Views are personal)

(Anurag Tiwary is a Delhi-based lawyer practising in the Supreme Court of India.)

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