Delhi: The Bharatiya Nyaya Sanhita (BNS), the new criminal code, has caused ripples among the LGBTQIA+ community as well as men across India, leaving them without any form of redressal in case of rape.
Though the new code has not changed much of the sections from the now-repealed Indian Penal Code (IPC), the Section 377, which deals with LGBTQIA+ community and safeguards them from sodomy, is conspicuous by its absence.
In 2018, a portion of the section that criminalised homosexual sex — specifically, anal penetration — was removed. However, there remained clauses that forbade bestiality and sodomy.
Presently, under Section 63, the ambit of crimes amounting to rape is defined as a crime committed by a man on a woman. Accordingly, the crime has been defined as:
“A man is said to commit rape if he ) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or manipulates any part of the body of a woman so as to 3 cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person.”
The definition does not pertain to any act that is committed by any person against a cisgender and heterosexual, or a gay man, or to that effect a transgender person.
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Although Section 377 was deemed a draconian law, certain parts of it enabled male and transgender victims to seek legal recourse if sexually assaulted or harassed.
With the advent of the new laws under BNS, the queer community as well as men have nowhere to seek help.
According to Sharif Rangnekar, a queer activist from Delhi and the director of the Rainbow Literature Festival, the BNS leaves no room for legal safeguards for men or transgender people in the community.
“The fact that the criminal code does not have any provision for men highlights the fact that the society should still believe the idea of them being resilient and strong without any human emotion that resembles any form of vulnerability at any moment. Moreover, this will also enable others to make it much more difficult for men to prove any form of violation done against them,” he said.
He added that these factors will lead to the community as well as heterosexual men to not approach the police regarding any such matter.
“There will be no point of approaching the court or reporting a complaint with the police, especially after considering the fact that our victimisation will not be considered,” he said, “Being a survivor, I know how difficult the law can get when they deal with cases regarding male survivors and the transgender community.”
Accordingly, the punishment for the infringement of Section 63 of the BNS (dealing with rape) is a minimum of 10 years in prison which may extend to life imprisonment or death. Similarly, the punishment for sexual assault of children below 18 is a minimum of 20 years in prison, life imprisonment or death.
Owing to male citizens and transgender people not being covered under the ambit of the said Sections, their protection remains hanging by the thread. According to the legal fraternity, to protect the interests of men, the culprits will have to be charged under charges of Section 118 defining ‘Grievous Hurt’, or Section 114 defining ‘ Hurt’.
Hurt is defined as “whoever causes bodily pain, disease or infirmity to any person is said to cause hurt”.
Grievous hurt is defined under Section 118 as, “emasculation; permanent privation of the sight of either eye; permanent privation of the hearing of either ear; privation of any member or joint; destruction or permanent impairing of the powers of any member or joint; permanent disfiguration of the head or face; fracture or dislocation of a bone or tooth; any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits”.
To put matters into perspective, the punishment for causing hurt is imprisonment for a year, while for the latter, it is a minimum imprisonment for seven years, or a fine, or both. Prominent advocate, Rohin Bhatt, elaborated that the repeal of the Indian Penal Code had created a vacuum for male sexual assault survivors.
“The fact that male survivors will now have to look for justice under the new sections means that the culprits will not have to suffer a harsh punishment. To put matters into perspective, the maximum punishment of seven years does not exactly deter culprits from committing the particular crime. Although parts of Section 377 were concerning and draconian, it provided the legal recourse that a survivor could approach,” he said.
Section 377 of the IPC was concerned with “unnatural offences” which were defined as:
“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.”
The punishment for the violation of the Section was a minimum of 10 years imprisonment, which could extend to life imprisonment. A prominent queer rights activist highlighted that the only way that the Section could be repealed was through multiple movements across the country.
“The queer community will have to organise protests and movements across the country to fight against the exclusion of community as well as turning such a heinous crime into a battle of the sexes. It is discriminatory and unfair to the many citizens of the country,” he said on condition of anonymity.
Accordingly, a senior Delhi Police official said that no directive had been issued by the government regarding the reading of the Section to protect male or transgender survivors.
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“We have not received any brief regarding the exclusion of provisions under Section 377, and male or transgender survivors have not been mentioned in the criminal code. Their cases will have to be read under the pertaining sections under hurt, or grievous hurt,” she said.
Besides sodomy, unnatural sex with animals, or bestiality, has also found no mention in the BNS.
