Section 377 Excluded in New Criminal Law Bill (BNS): Impact on Men, Transpersons and Animals

The 2023 Bharatiya Nyaya Sanhita (BNS) Bill, which aims to replace the Indian Penal Code (IPC), was brought back to Parliament on December 12.

This sparked a discussion about leaving out Section 377, which criminalizes non-consensual sex and sexual offences against adults of any gender and animals. Even though a Parliamentary Committee had previously suggested keeping these rules, this new Bill excludes them, making rape of men, transgender individuals, and animals not punishable by law.

In essence, there’ll be a gap in laws protecting these three sections.

HerZindagi spoke to lawyers and experts, to understand these recent developments, and decode how this affects these three sections of society.

What is IPC and What Is It Being Replaced With?

All crimes, presently, are penalised under the Indian Penal Code (IPC). This is all set to be replaced by a wholly new law, called the Bharatiya Nyaya Sanhita (BNS) Bill.

IPC is an umbrella law that criminalises many acts, and BNS is something similar, but with a few different legal provisions.

In the first draft of the bill, which was introduced in August, many noticed that there weren’t any sections that protected animals, men or transpersons from sexual abuse. Thereafter, the bill was sent to the Parliamentary Standing Committee on Home Affairs. Post several discussions, the committee recommended changes, one of which was to keep Section 377 in the BNS.

Read:HaqSe: Transgender Laws In India, Here's An Explainer

What is Section 377? How Is It Linked to LGBTQIA?

Section 377 of the IPC states: “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 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.”

In 2018, The Supreme Court of India, in a unanimous decision, declared Section 377 of the IPC unconstitutional insofar as it criminalized consensual sexual conduct between adults of the same sex. This was hailed as a huge win for the LGBTQIA community. The case was brought forward by dancer Navtej Singh Johar, who argued that Section 377 violated constitutional rights such as privacy, freedom of expression, equality, human dignity, and protection from discrimination.

However, in this judgement, the SC reiterated that other aspects of it, dealing with unnatural sex with animals and children remained in force and that it was restricting its order to only consenting acts between two adults.

What Law Protects Citizens Against Rape?

IPC defines rape as an act committed specifically by men against women.

Children, regardless of gender, were protected under the POCSO Act.

The present version of 377, with its wording of “any man, woman or animal” protected men, transpeople and animals against sexual abuse.

With it fully gone, no law penalises any sexual abuse against men, transpersons and animals in the new Bill.

PETA Raises Alarm Over New BNS Bill

“If this bill were to be passed in its present form, without the provision for sexual abuse of animals, bestiality would become legal in India,” said Meet Ashar, who heads PETA’s India Cruelty Case Division as a Legal Advisor.

He explained further that in the past year, more than 12 gruesome cases have been reported, which involve animals like dogs, buffaloes, goats, sheep and more.

“We need to remember, that this isn’t just about animals. People who harm animals are three times more likely to commit similar crimes against humans,” he added. “We cannot allow this to happen in civilised society.

PETA has written to the Prime Minister, Home Minister, Animal Welfare Board of India and other MPs, expressing grave concern about the complete omission of a provision criminalising sexual abuse of animals.

How BNS Affects Men or Transgender Individuals

“Rape as defined under Sextion 375 of the Indian Penal Code is not a gender-neutral law as it specifies the sexual act to be done by a man on a woman and this left a lacuna for the prosecution of non-consensual sexual intercourse of men. One such protection to men was provided for under Section 377.,” explained Adhishwar Suri, an Advocate practicing at the High Court.

He further elaborated, “The proposed removal of this provision creates a situation where there is essentially no protection from non-consensual sexual intercourse of men. This leaves homosexual men and transgenders in a vulnerable position.”

However, he added that the same can be dealt with by amending the provision of rape itself to make it gender inclusive.

According to a survey which covered responses from over 5000 transgender people in 2014-15, one-fifth said they had experienced sexual violence in the past 12 months. While reiterating the 2018 judgement, the Supreme Court has highlighted that sexual minorities are a vulnerable group which requires legal, social, and systemic protections.

However, with the absence of provisions catering to all genders, the new BNS Bill is likely to leave many in vulnerable situations.