Introduction
The Indian Penal Code of 1860 was a criminal law enacted on 6 October 1860 under the British Raj, serving as the official criminal code governing the Republic of India. This law continued to govern Indian citizens post-independence as well. However, the Bharatiya Nyaya Sanhita of 2023 officially replaced the Indian Penal Code on 1 July 2024. This new law introduced a few changes, with one of the most widely discussed being the omission of Section 377. Section 377 of the Indian Penal Code addressed recourse regarding bestiality and victims of sexual assault, irrespective of gender. The Bharatiya Nyaya Sanhita, however, lacks this section. The introduction of the Bharatiya Nyaya Sanhita was primarily aimed at implementing reforms and replacing the outdated colonial-era criminal law. The most common justifications include the argument that recourse for heinous crimes is now addressed under various sections of the Bharatiya Nyaya Sanhita (BNS). While the newer provisions expand on rape laws, they still fail to provide recourse for men. Another justification is the replacement of colonial laws, as the Indian Penal Code (IPC) was introduced by the British during their rule in India. However, many critics argue that this alone is not sufficient reason to abolish a law entirely and that laws should be evaluated based on their contribution to society. Nevertheless, the absence of this section in the new law has sparked public debate, as it appears to contradict the intended purpose of reform.
History of Section 377 of the Indian Penal Code 1860
Section 377 of the Indian Penal Code addresses issues about bestiality and nonconsensual acts. Section 377 of the Indian Penal Code was drafted by Thomas Macaulay in the 1830s. The law in British India was based on the Buggery Act of 1533, which defined “buggery” as an unnatural sexual act against the will of God and man. As a result, this law was introduced to criminalize anal penetration, bestiality, and homosexuality. Interestingly, the United Kingdom decriminalized homosexuality in 1967 through the Sexual Offences Act of 1967. However, in India, Section 377 continued to criminalize homosexuality until the landmark Supreme Court verdict of 2018, which decriminalized it. Before this historic ruling, Section 377’s history involved numerous requests for appeal and many petitions advocating for its removal.
The long history of Section 377 and the resistance against it officially began in 1991 when the AIDS Bhedbhav Virodhi Andolan published a report titled ‘Less than Gay: A Citizen’s Report’. This landmark report addressed various experiences faced by the LGBTQ+ community, while also notably highlighting the problems associated with Section 377 and calling for its repeal. This report is regarded as a significant stepping stone in the movement against this section.
This report expanded the conversation around homosexuality within Indian society, drawing significant attention. Over the years, numerous debates emerged, both for and against the repeal of Section 377. In 2001, the Naz Foundation filed a petition in the Delhi High Court, challenging the constitutionality of Section 377 and seeking the decriminalization of consensual acts between homosexuals. However, in 2004, a two-judge bench of the Delhi High Court dismissed the petition, stating that “the body had no say” in the matter.
Following this, in 2006, the Naz Foundation appealed the dismissal of the petition to the Supreme Court. The Apex Court instructed the Delhi High Court to reconsider the matter. As a result, In 2009, the Delhi High Court delivered a landmark judgment decriminalizing consensual homosexual acts between adults. In the aftermath of this ruling, numerous appeals were made to the Supreme Court, questioning the Delhi High Court’s authority to enact such a significant change in the law.
The Delhi High Court’s judgment was challenged by Suresh Kumar Koushal in the Supreme Court of India. Consequently, the Supreme Court in 2013, upheld Suresh’s appeal and overturned the Delhi High Court’s ruling, resulting in the decriminalization of homosexuality. Presiding Justices G. S. Singhvi and S. J. Mukhopadhaya emphasized that the LGBT community constituted a small population in the country, and there had been few prosecutions under this section. The Supreme Court also highlighted that the authority to change or amend laws rested with Parliament.
This judgment was met with immediate criticism from across the country. In 2014, the Narendra Modi-led government announced that they would take a decision regarding this section responding to the Supreme Court judgement. However, when Shashi Tharoor introduced a bill to decriminalize homosexuality, it was with immediate disapproval and was hence, promptly rejected in the Lok Sabha.
In 2016, a petition challenging the 2013 Supreme Court ruling was filed by five prominent figures. The long fight for the decriminalization of homosexuality culminated in 2018 when the Supreme Court, in the case of Navtej Singh Johar v. Union of India decriminalized homosexuality. However, the Apex Court also clarified that Section 377 still addressed issues related to bestiality and victims of sexual assault, irrespective of gender.
The Indian Penal Code included several sections addressing crimes against women, but it did not specifically cover crimes against men and transgender individuals. Section 377 was the sole exception, addressing offences related to both men and transgender individuals.
Bharatiya Nyaya Sanhita 2023
The Bharatiya Nyaya Sanhita was introduced in 2023 and officially replaced the Indian Penal Code on 1 July 2024. The primary aim of this replacement was to reform the criminal law and move away from colonial-era statutes. However, the omission of Section 377 from the new code sparked debate among the public, as it was the only provision that specifically protected men and transgender individuals against non-consensual acts.
The law faced significant criticism and was perceived by many as a step backwards towards a more regressive India, contrary to its original intention. In August 2024, a petition was filed in the Delhi High Court challenging the exclusion and omission of Section 377. Chief Justices Manmohan and Justice Tushar Rao Gedela, who were presiding over the case, directed the Centre to decide this petition.
Hyderabad MP Asaduddin Owaisi raised this issue while discussing the new criminal bills before their enactment, questioning whether only women are subjected to stalking and rape. His comments were met with ridicule. Instead of incorporating gender-inclusive provisions for these crimes, the Bharatiya Nyaya Sanhita did the opposite, failing to address the genuine concerns raised by many following the introduction of these laws.
It is no news that men and transgender individuals are also subjected to these horrifying crimes, and the omission of Section 377 could prove to be extremely harmful to them. A recent example further highlights this concern. A sexual harassment case in the Calcutta High Court was quashed because it involved a female accused. All subsections under Section 354A of the Indian Penal Code began with “A man” and therefore could not be applied to a female perpetrator. Consequently, the case was quashed. The Bharatiya Nyaya Sanhita was intended to reform gender-centric laws for this very reason. However, with the omission of Section 377, it appears that the Bharatiya Nyaya Sanhita has not lived up to its “reformative” promise.
Conclusion
The transition from the Indian Penal Code of 1860 to the Bharatiya Nyaya Sanhita of 2023 marks a significant shift in India’s criminal justice system, intended to modernize and reform colonial-era statutes. However, the Bharatiya Nyaya Sanhita, while aiming to replace outdated laws, has been criticized for failing to address the gender inclusivity that was expected. The lack of specific provisions to protect men and transgender individuals under the new law highlights a significant gap in the reform process, as evidenced by recent legal challenges and the quashing of cases based on gender-specific provisions.
The Bharatiya Nyaya Sanhita, while aiming to replace outdated laws, has been criticized for failing to address the gender inclusivity that was expected. As India continues to navigate the balance between reform and protection, the absence of Section 377 in the Bharatiya Nyaya Sanhita reflects a need for further consideration and amendments to ensure that all individuals, regardless of gender, are adequately protected against crime.
As observed in the recent sexual harassment case being quashed in the Calcutta High Court, where the victim was a man, serves as a testament that we need gender-neutral laws. If not gender-neutral laws then it is important to include recourse for male and transgender victims specifically just as we have for women.
The ongoing debate and legal challenges emphasize the importance of a criminal justice system that genuinely reflects the needs and realities of a modern, diverse society. We cannot continue to advocate for gender equality and equity while excluding men and transgender individuals.
Author(s) Name: Vandna Singh (Kazi Nazrul University, West Bengal)
