KEY TAKEAWAYS
- On December 20, 2023, the Lok Sabha passed three new criminal law bills to overhaul the Indian legal system to create a justice system rooted in “Indian Principles”. These new bills are set to replace the – Indian Penal Code (IPC) of 1860 – Bhartiya Nyaya Sanhita (BNS), 2023, The Code of Criminal Procedure (CrPC) of 1973 – Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, The Indian Evidence Act of 1872 – Bharatiya Sakshya Adhiniyam (BSA), 2023
- On July 1, 2024, India introduced these three new criminal laws. The BNS replaced the IPC with 358 sections, introduced 20 new crimes, increased penalties for 33 offences, enhanced fines for 83 crimes, and included a new chapter on crimes against women and children. The BNSS replaced the CrPC with 531 sections, included 44 new provisions, and set timelines for legal processes to expedite justice. The BSA replaced the Evidence Act with 170 provisions, modernised court evidence procedures, and repealed outdated provisions.
- The Bharatiya Nyaya Sanhita, 2023 did not, include IPC Section 377, which prohibited “Carnal intercourse against the order of nature with any man, woman, or animal.” Consensual homosexual conduct between adults has no longer been considered a “Crime” under the new Law.
KEYWORDS: Bhartiya Nyaya Sanhita (BNS), 2023 – (IPC), Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023 – (CrPC), Bharatiya Sakshya Adhiniyam (BSA), 2023 – (Evidence), Indian Principles, Carnal intercourse.
INTRODUCTION
The Bharatiya Nyaya Sanhita Act, 2023, the replacement for the IPC, consolidates and amends provisions related to offences and connected matters. However, it does not include any “Provision equivalent to Section 377 of the IPC”. The disputed section was partly declared unconstitutional, as the Supreme Court read down the words “Carnal intercourse against the order of nature with any man, woman or animal” in the case of “Navtej Singh Johar V. Union of India” (2018). While retaining Section 377, which pertains to ‘Unnatural offences’, it can no longer be used to criminalise consensual homosexual activity between adults. Some experts have pointed out that the omission of this section in the BNS could limit legal options for “Adult male victims of sexual assault”.
In the case of “Navtej Singh Johar V. Union of India” (2018), the SC 5-judge benchunanimously “Decriminalised consensual sexual relations between adults”, regardless of their gender. This landmark ruling also involved the partial removal of Section 377 from IPC as mentioned above. Supreme Court criticised some of the portions of Section 377 that deemed “Consensual unnatural sex as irrational, indefensible and manifestly arbitrary”. It acknowledged that Section 377 had been misused to discriminate against and harass LGBTQ individuals and emphatically stated, “Section 377 is arbitrary, the LGBTQ community possesses rights like others.”
The primary concern regarding the Bharatiya Nyaya Sanhita, 2023, is the lack of provisions to protect “Male victims” of sexual assault. Under the IPC, protections existed for “Man, woman, or animal” against such acts of violence. However, with the passage of the BNS, men have lost one of the few protections they had as victims of sexual assault. Rape is covered under “Section 63 of the new criminal law BNSS”, which remains gender-specific, assuming that rape can only occur against a woman by a man.
HISTORICAL BACKGROUND OF SECTION 377 OF IPC
In the year 1861, the British Raj implemented section 377, originally drafted by Thomas Macaulay in the year 1838. The original inspiration for this Section was from the Buggery Act of 1552, which similarly defined ‘buggery’ as “An unnatural sexual act” contrary to the laws of nature and religion.
A petition in the Delhi High Court was filed in the year 2001 by the Naz Foundation, in which they challenged the constitutionality of Section 377 which was at first dismissed, however, in the year 2006, the Supreme Court significantly directed the Delhi High Court to once again refer to the case. In its 2009 verdict, the High Court held that “Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14, and 15 of the Constitution.
In the year 2013, however, the Supreme Court set aside this verdict, stating that the High Court’s decision was “Legally unsustainable”. The court argued that the High Court had “Overlooked that a minuscule fraction of the country’s population constituted lesbians, gays, bisexuals, or transgenders and in the last more than 150 years, fewer than 200 persons have been prosecuted.”
EVOLVING JUDICIAL PERSPECTIVES ON SECTION 377 OF IPC
In the “Suresh Kumar Koushal” case, the SC reintroduced the criminalization of “Unnatural sex”, which perpetuated the criminalization of consensual sex between LGBTQ individuals and was deemed a violation of Article 14. In response, hon’ble Justice Nariman of the Supreme Court remarked that the Koushal decision had become outdated in light of the NALSA and Puttaswamy judgements. He underscored that homosexuality should not be classified as a mental disorder and asserted that “Homosexuals have the right to live with dignity”.
Following Justice Nariman’s Supreme Court remarks, Hon’ble Chief Justice D.Y Chandrachud further addressed the matter, asserting that Section 377 inflicted substantial harm and suffering and needed reform. He emphasized that this case was not merely about decriminalizing a provision but about fulfilling constitutional rights and ensuring the equal status of the LGBTQ community. Hon’ble Chief Justice D.Y. Chandrachud also referenced the prior year’s right-to-privacy ruling, stating, “To deny the LGBTQ community their right to sexual orientation is to deny their citizenship and violate their privacy”.
In the case of “Naz Foundation V. Government of NCT of Delhi and Ors” a division bench of the Delhi High Court ruled that Section 377 of the IPC, as it criminalised consensual sexual acts between adults in private, violated Articles 21, 14 and 15 of the Constitution”. However, this relief was temporary, as the Supreme Court overturned the High Court’s decision in December 2013.
HOW SECTION 377 OF IPC AFFECT THE CRIMINAL JUSTICE SYSTEM
The critics have warned that if the Bharatiya Nyaya Sanhita, 2023 (BNS) is enacted in its current form, certain groups, particularly male victims of sexual assault, may lose legal protection. Previously the IPC, Section 377, which stated “Carnal intercourse against the order of nature with any man, woman, or animal”, provided legal protection for non-minor males from rape. This provision has been excluded from the proposed BNS.
However, the proposed BNS does not include similar protections for male victims. Rape under the BNS is covered by Section 63, but critics argue that the definition is gendered, suggesting that the crime can only be committed by a male against a female. As a result, non-minor males may find themselves without legal recourse if the BNS is enacted as is.
WAY FORWARD
Proponents of gender neutrality argue that Section 497 of the IPC, which was invalidated by the SC in 2018, should be retained in the new legislation by making it gender-neutral. Section 487 previously held that a person committing adultery was guilty if they had sexual relations with a married woman without her husband’s consent or connivance. While this section prescribed penalties such as imprisonment or fines for the perpetrator, it did not impose any consequences on the woman involved.
The SC’s decision to strike down this provision was based on its outdated, arbitrary, and paternalistic nature. The court found that it infringed upon a woman’s autonomy, dignity, and privacy, treating her as the property of her husband. Nevertheless, the committee contends that marriage is a fundamental institution in Indian society that requires protection. They propose retaining a gender-neutral version of this clause in the new legislation to safeguard the institution of marriage.
CONCLUSION
The introduction of the Bharatiya Nyaya Sanhita, in 2023, marks a significant overhaul of India’s criminal justice system, aiming to align legal standards with modern values. While the new laws, including the BNS, BNSS, and BSA, signify progress such as the decriminalization of consensual same-sex relationships the removal of Section 377 raises concerns. This section previously offered some protection to male victims of sexual assault, and its absence in the BNS could leave a legal void for these individuals.
Critics argue that Section 63 of the BNS, which addresses rape, is gendered and might inadequately protect non0minor male victims. Furthermore, the debate over Section 497 of the IPC underscored the need for gender-neutral legal provisions. Although the SC deemed Section 497 outdated and paternalistic, retaining a gender-neutral version could better safeguard the institution of marriage while respecting individual rights.
As India implements these new laws, addressing these gaps will be crucial to ensuring that legal protections are comprehensive and equitable. The reforms should aim to balance modernization with the protection of fundamental rights, ensuring justice for all citizens regardless of gender or sexual orientation.