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Beyond Decriminalization: The Ripple Effects of Section 377's Repeal on The Indian Criminal Justice System

Updated: Mar 30




INTRODUCTION

            “Homosexuality is not a mental disorder”-Justice Nariman

Last month, the Parliament passed three new acts in the Lok Sabha to replace the three main Criminal Legislations which will come into force on 26 January 2024. The particular and significant changes introduced by these Acts have become It becomes essential to redirect our attention towards the particular and significant changes introduced by these Acts. Initially, these alterations may seem to involve a restructuring of current Sections, a characterization that holds a fair degree of accuracy. Nevertheless, upon a more thorough review, these revisions notably stumble in the crucial domains.

The Bhartiya Nyaya Sanhita Act, 2023 (hereinafter referred to as BNS), the replacement for the IPC, consolidates and amends provisions related to offences and connected matters. However, it does not include any provision equivalent to S. 377 of the IPC. However, the problematic section was partly declared unconstitutional. Specifically, the words “carnal inter­course against the order of nature with any man, woman or animal” were read down by the Supreme Court in 2018. While retaining Section 377, which pertains to ‘unnatural offences,’ it can no longer be employed to deem consensual homosexual activity between adults as a criminal offence. However, some experts have pointed out that the omission of this section in the BNS could result in limited legal options for adult male victims of sexual assault.

While the bare language of section 377 of the IPC made consensual private sexual activities among adults illegal, it encompassed a broad range of sexual acts between individuals of any gender that deviated from heterosexual penile-vaginal intercourse, even when consent is present.

To this effect, in Navtej Singh Johar vs. Union of India (2018), the 5-judge bench of the Supreme Court reached a unanimous verdict to decriminalize consensual sexual relations between adults, regardless of their gender. This landmark ruling also involved the partial removal of Section 377 from the Indian Penal Code. The apex court criticized the portions of Section 377 that deemed consensual unnatural sex as “irrational, indefensible and manifestly arbitrary.” It acknowledged that Section 377 had been misused as a tool to discriminate against and harass LGBTQ individuals and emphatically stated, “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights.”

The primary concerning factor regarding the Bharatiya Nyaya Sanhita, 2023, is that 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. However, by passing the BNS, men have lost one of the only protections they had being victims of sexual assault. After all, Rape is covered under Section 63 of the proposed Bharatiya Nyaya Sanhita, 2023, which is still gendered, and assumes that rape can happen only against a woman by a man.

However, the proposed BNS mentions “unnatural lust” in at least two places. But, the vagueness of these provisions would prohibit the male victims of rape for the foreseeable future by the time clarity is brought into these provisions. Specifically, section 38, provides the right to private defence of one’s body against “an assault to gratify unnatural lust.” Section 138(4) Section 138(4) has also been made Kidnapping or abducting a person to submit or put them “in danger of being subjected to grievous hurt, slavery, or the unnatural lust of any person” is punishable under Section 138(4). This comes at a backdrop when the Supreme Court has made certain gendered offences gender neutral such as Adultery under s. 497 of IPC.

WAY FORWARD

Same-sex relationships were recognised under Section 377. However, this Bill does not recognise intercourse between two men/women, instead focusing on the rape of a woman by a male. This is a heteropatriarchal idea. The absence of portion 377 will allow perpetrators to get away with the crime because they do not come under any specific portion of the law. It will cause a lot of confusion; the government should create specific offences for each gender. with equal punishment for all, which I think for a country like India might work better where gender inequality is still something to address.

REFERENCES

MANU/SC/0947/2018 

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