New criminal law Bill omits Section 377: How this impacts men and trans persons

Despite a Parliamentary Committee’s recommendation to retain Section 377, the reintroduced Bharatiya Nyaya Sanhita (BNS) Bill omits it, making the rape of men, transgender individuals, and animals non-offences.
Union Home Minister Amit Shah
Union Home Minister Amit Shah
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The Bharatiya Nyaya Sanhita (BNS) Bill, 2023, meant to replace the Indian Penal Code (IPC), was reintroduced in Parliament on December 12, leading to debate over the exclusion of Section 377. The Section criminalises non-consensual sex between adults of all genders and orientations, as well as sexual offences against animals. Despite a Parliamentary Committee’s recommendation to retain these provisions, the new Bill omits them, making the rape of men, transgender individuals, and animals non-offences.

Senior lawyer and activist Vrinda Grover pointed out that by the deletion of Section 377, there will be a gap in the law in so far as legal protection for adult males and trans persons against sexual violence is concerned. “All persons who experience sexual violence up until the age of 18 are covered under the POCSO Act. The Transgender Protection Act also looks at violence against the bodies of trans persons but treats it quite mildly. So the avenue available for men and transgender individuals against sexual violence remains closed in the absence of a law that addresses it,” she told TNM.

In 2018, the Supreme Court decriminalised consensual sex amongst homosexual couples. But Section 377 was retained in the IPC, criminalising sexual offences against animals, men, and transgender individuals. On August 11 this year, Union Home Minister Amit Shah introduced three criminal law bills in the Lok Sabha to revamp the criminal justice system and replace the Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure. The bills were then referred to the Parliamentary Standing Committee on Home Affairs, and after several rounds of discussions, the Committee suggested changes, including the retention of Section 377 in BNS.

The three bills were withdrawn by the Union government earlier this week, citing that they will be reintroduced with revisions. However, the new draft of BNS has no mention of Section 377.

Lawyer and rights activist Aravind Narrain said that the new Bill need not retain Section 377, but that a new provision must be introduced as part of the laws on rape to criminalise sexual offences against men and transgender individuals. “The present rape laws only cover rape against women. The aim is to cover this gap and make rape against all persons an offence. Therefore, a new provision criminalising rape against all persons, not just women, must be brought in. This would cover everyone who faces sexual violence,” Aravind told TNM.

Another aspect of the problem is the patriarchal moral projection that while the rape of a woman is seen as an affront to her family and clan, rape of any other person is reduced to their body and therefore not treated with as much severity. Aravind pointed out that the law on rape itself is fairly neutral in its description of sexual violence. “Stepping away from a heterosexual view of sexual violence, the law uses words like “orifice” and not specific genitals in order to widen the ambit of the offence, provided it is committed against a woman. The social perspective on sexual violence is what remains problematic. We need to view it as a violation of a person’s bodily integrity. The person – any person who faces sexual violence irrespective of gender and sexual identity – must be at the centre of this. The question is, how do you change social morality in a patriarchal society,” Aravind said.

Vrinda noted that when we look at the BNS omitting Section 377, it is clear that violations of the bodies of men and transgender persons are not even considered as a crime that must be treated with severity. “At least that is the message the state is giving out,” she said.

She also pointed out that there is documented evidence that men of different sexual orientations and gender identities are particularly vulnerable to sexual violence at the hands of law enforcement agencies and the general society. “Given the deeply embedded prejudice against sexual minorities, it is not just enough that the law is modified. There has to be sensitisation, and accountability on the part of the police in how they implement the law. So the duty of the state is not just to introduce protection in the statute, but also to ensure that it is accessible to those who require remedies,” she said.

It is also to be noted that both in the Navtej Singh Johar judgement of 2018 which decriminalised consensual sex between adults of all genders and orientations and the recently passed judgement in the marriage equality petitions, the Supreme Court underlined that sexual minorities are a vulnerable group who require legal, social, and systemic protections. All the judges reiterated that the government must take measures to address this. In this context, the Union’s omission of Section 377 in the new Bill also indicates plain irreverence or even a lack of state will to do anything for the welfare of men and transgender individuals who face violence.

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