New criminal laws legalise male rape in India

Nihit Nagpal
S.S. Rana & Co, New Delhi
nihit.nagpal@ssrana.in

Lakshit Rajdev
S.S. Rana & Co, New Delhi

Introduction

Rape is one of the most grievous forms of human rights violation committed against any person. Laws against rape are globally recognised and enforced through various domestic laws in every country. The most recent debate relating to this offence is about whether the new criminal laws enacted by the Indian Government legalise the offence of male rape. Where non-consensual sex with a same gender person was also criminalised under the provisions of the earlier Act, the new Act completely removes the provisions of unnatural offences which was earlier punishable under Section 377 of the Indian Penal Code 1860. This step by the Indian government not only violates basic human rights but also pushes the criminal law backwards after a long history of this controversial provision relating to same-sex relationships.

Background of Section 377 of the Indian Penal Code

Section 377^[1] of the Indian Penal Code (IPC) has been the centre of a decade long legal struggle faced by the Indian LGBTQI+ community. This provision criminalised consensual and non-consensual sex between same-sex persons by categorising them under ‘Unnatural Offences’. To analyse the issues related to this provision, the timeline of the legal history of this provision is necessary to be considered.

1. Under British rule, Section 377 came into force in 1860, based on the Buggery Act 1533 drafted by Thomas Macaulay which defined ‘buggery’ as ‘unnatural sexual Act against the will of God and man that is why it criminalizes anal penetration, bestiality and homosexuality broadly’.
2. In 2001, the first legal complications against this provision began when the Naz Foundation Non-Governmental Organisation (NGO) filed a petition challenging the constitutionality of Section 377 of the IPC in Hon’ble Delhi High Court. The court upheld the petition in 2003, stating that it had no standing. The foundation appealed to the Supreme Court who directed the Delhi High Court to reconsider their judgment.
3. In 2009, the Delhi High Court, while re-examining the Naz foundation case, ruled that consensual sexual acts between same-sex couples should not be considered criminal stating that ‘we declare that section 377 IPC regardless of its prohibition of consensual sexual acts by adults in private space breaches Articles 21,14 and 15 of our Constitution’.^[2]
4. In 2013, Suresh Kumar Koushal applied for an appeal against the Delhi High Court Order which was dismissed by the Supreme Court stating ‘section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable’.^[3] Finally, in 2018, a petition was again filed by a Bharatanatyam dancer, Navtej Singh Johar, in which the Supreme Court formed a constitution bench of five judges which was led by then Chief Justice Dipak Mishra. This bench decriminalised Section 377 partially by allowing same-sex relations between consenting adults. However, the Hon’ble Court upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.^[4]

After this long legal battle, the Supreme Court upheld the provisions of Section 377 that criminalised the nonconsensual acts, bestiality and carnal intercourse under the head of unnatural offences under Section 377. However, recently the Indian government legislated new criminal laws, which repealed the old criminal laws. The new criminal law acts are named the Bharatiya Nyaya Sanhita 2023 (BNS) replacing the Indian Penal Code 1860; the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) replacing the Criminal Procedure Code 1973; and the Bharatiya Sakshya Adhiniyam 2023 (BSA) which has replaced the Indian Evidence Act 1872.

Focusing, on the Bharatiya Nyaya Sanhita, which has replaced the Indian Penal Code and completely removed the provisions under Section 377 which means that protection for men against rape has been removed in the new Act. The offence of ‘rape’ is covered under Section 63 of the Bharatiya Nyaya Sanhita, which does not provide any protection to a male against sexual assault. This move under the newly enacted Act goes completely against the principles of gender neutrality and contradicting the objective which was proposed by the government while presenting the bills in the Parliament of India. This article further dives into the effect of this change on the criminal justice system and the other provisions of the Bharatiya Nyaya Sanhita, based on the principles of gender neutrality.

Effect of the repeal

As discussed, Section 377 of the Indian Penal Code was read down by the Supreme Court and, based on the doctrine of severability, removed the provision that criminalised the consensual intercourse between people of same sex. Now, according to the new criminal laws, there is no provision replacing this section. Sexual offences under the Indian Penal Code were covered under chapter XVI of the Code, ‘Of Offences Affecting the Human Body’. In the proposed Bharatiya Nyaya Sanhita, the subhead ‘Of sexual offences’ falls under Chapter V of the Sanhita, which specifically concerns ‘Offences against Women and Children’.

The direct inference which can be made out of this change is that protection to non-minor males from rape is not available under new provisions. This would have an adverse effect on legal rights of men and their protection against criminal offences.

Provisions relating to gender neutrality under the Bharatiya Nyaya Sanhita 2023

Other than provisions related to sexual offences in the Bharatiya Nyaya Sanhita, there are provisions that pose principles of gender neutrality such as:

1. Domestic violence prevention: Section 112^[5]: Protection against domestic violence provides preventive measures for victims of domestic violence; these protections apply universally to everyone including men and persons who identify as LGBTQI+.
2. Equal rights for victims: Section 200^[6]: Rights of victims requires that all victims receive equal consideration and respect from the government regardless of their sex.
3. Gender-neutral definitions: Definitions include gender-neutral definitions for key terms such as consent, coercion and exploitation in order to ensure that the law applies equally to everyone.
4. Anti-discrimination measures: Section 300^[7]: Prohibits anti-discrimination, forbidding discrimination based on gender across all spheres such as employment, education and access to public services.
5. Inclusive protection orders: Section 350^[8]: Any individual regardless of gender may apply for protection orders when threatened or threatened with violence.

These sections are designed in a way that they ensure that the Bharatiya Nyaya Sanhita 2023 promotes equality and justice among all people irrespective of their sex.

Laws of other countries on gender neutrality in sexual offences

Colourable effect of the new Act

On the one hand, the government while introducing these acts has coloured it with the principles of gender neutrality by including gender-neutral definitions in many offences, which is a welcomed change in the community.

On the other hand, the Bhartiya Nayaya Sanhita has completely removed the provisions under Section 377, which means that the protection of men against rape has been removed in the new Act. The offence of ‘rape’ is covered under Section 63 of the Bharatiya Nyaya Sanhita, which does not provide any protection to a male against sexual assault. This move under the newly enacted Act goes completely against the principles of gender neutrality and contradicts the objective which was proposed by the government while presenting the bills in the Parliament of India.

Currently, a Public Interest Litigation (PIL) has been filed in the Delhi High Court which challenges the exclusion of a provision to punish acts of non-consensual sodomy or other ‘unnatural’ sexual relations with any person (man or woman) under the Bhartiya Nyaya Sanhita. The Division bench of the High Court has agreed to hear the matter and listed the same for 13 August 2024.

Way forward

There is an urgent need to address these issues of gender neutrality with the newly enacted laws by the Indian Parliament replacing the old criminal laws. Discrimination in any form is a violation of a person’s rights to live with dignity and against discrimination or the basic human right of the protection of one’s body against offences such as sexual assault and rape whether it is a man or a woman or any other gender of LGBTQIA+ community. After analysing the history of Section 377 and protests conducted by the LGBTQI+ community against the discriminating provisions of Section 377 and the Supreme Court striking down, gender neutrality in respect of bodily harm offences is a necessary step to stop discrimination among different genders.