Among the three laws replacing India’s centuries-old criminal laws proposed by Union home minister Amit Shah in the ongoing Monsoon Session of Parliament was the Bharatiya Nyaya Sanhita, 2023, superseding the British-framed Indian Penal Code, 1860 (IPC). A carefully crafted proposal, the bill completely omits the provisions of “unnatural sex” under Section 377 which was read down by the Supreme Court in 2018. While the top court had decriminalised gay sex between consenting adults, it still let “unnatural offences” be part of the IPC.
On the other hand, the new law has sections added for the protection of women and children against sexual offences, but it puts adult men victims at greater risk leaving them with barely any recourse in the law.
To understand how the new law puts adult men at greater risk, Outlook dives into the details of the original law under Section 377 of IPC, how the Supreme Court verdict changed it and the issues that the new law possesses.
What Is Section 377 Of IPC?
According to Section 377 of the IPC, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.”
The explanation, as per the law, is that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
History of Section 377 of IPC
The law has its roots in the practice of sodomy or buggery which was considered a crime since medieval times. In 1533, during the reign of Henry VIII, the Parliament of England passed ‘An Acte for the punishment of the vice of Buggerie’, punishing "the detestable and abominable Vice of Buggery committed with Mankind or Beast".
Modelled on the same, in 1861, during British rule, Section 377 was introduced under the IPC, following its assent by the Governor General the year before that.
The Supreme Court Verdict On Article 377
For decades, despite revisions, the archaic law categorised consensual sexual intercourse between same-sex people as an “unnatural offence” which is “against the order of nature”. Individuals of the LGBTQ community had filed many petitions at various courts and fought against the law, demanding legal protection against harassment and violence.
In 2009, a High Court bench of Chief Justice AP Shah and Justice S Muralidhar ruled that Section 377 IPC “is violative of Articles 21, 14 and 15 of the Constitution”. However, in 2013, the Supreme Court re-criminalised it stating that the high court order was “legally unsustainable”.
It was only in 2018 that the Supreme Court struck down the law declaring Section 377 "unconstitutional", saying it discriminated against individuals of the LGBTQ community on the basis of sexual orientation. The apex court decriminalised same-sex intercourse and termed it a matter of utmost privacy.
It said Section 377 was a product of Victorian-era morality and there was no reason to continue with it as it enforced Victorian morale on the citizens of the country.
Protection Against Sexual Assault Under BNS 2023
Under the proposed Bharatiya Nyaya Sanhita, 2023, there is no provision made to protect male victims of sexual assault. Currently, the IPC protects “man, woman or animal” against such acts of violence but if the BNS is passed in its present form, men could lose the legal protection accorded to them.
Currently, rape falls under IPC Section 375 and based on the listed notions of consent, if violated, it constitutes the offence by a man.
As per the proposed BNS 2023, the clause of sexual offences, listed in Chapter V, is limited to ‘offences against woman and children’. Therefore, “rape” under Section 63 of the Sanhita becomes gendered and it is committed by men against women or children, not any other way around. As a result, non-minor men have no legal recourse against forced sexual acts.
To date, Indian law does not recognise men as victims of rape but the IPC at least mentions “carnal intercourse against the order of nature with any man, woman or animal” as an offence. The only thing that the proposed Sanhita mentions is “unnatural lust” in two places – under Section 38, protecting the “right of private defence of the body” and Section 138, protecting against kidnapping.
If the law is passed in its present form, it puts queer men, who are often targets of harassment and molestation in Indian society, at the highest risk without any legal recourse.
