Bharatiya Nyaya Sanhita has no section dealing with rape of men, transgender persons

The alleged suicide of a 23-year-old man, hours after he was gang-raped by four men in Uttar Pradesh’s Gorakhpur district, has shed light upon the soon to be implemented Bharatiya Nyaya Sanhita, that does not include Section 377 or any other section that deals with rape of men and transgender persons.

On June 14, the Uttar Pradesh Police filed a first information report (FIR) against four persons for allegedly raping the 23-year-old at a hotel in Chiluatal area of Gorakhpur. While the U.P. Police booked the four accused under Section 377 of the Indian Penal Code (IPC) that deals with rape of a man, transgender person or an animal, alongside Sections dealing with extortion, theft, criminal intimidation, causing grievous hurt and criminal conspiracy, the case opened a debate on the future of such cases in the absence of Section 377 or its equivalent in the new code.

Speaking to The Hindu, advocate Karuna Nundy said that in the landmark Supreme Court judgement of Navtej Johar vs the Union of India, the Supreme Court had “read down” Section 377, and not “struck down”, implying that consensual sex between people of the same gender and transgender persons was no longer punitive, but the Section was retained since it was the only provision that covered the rape of men, transpersons and animals.

“With the removal of Section 377 from the BNS, and no alternative law in place, men or transgender persons will not have that legal protection against rape,” said Ms. Nundy.

Expressing concerns over the future of justice in such cases, senior lawyer Anand Grover said that in the garb of “decolonising criminal laws”, the government removed Section 377 from the BNS Bill, which will reduce severity of the sentence once the crime is proven.

“In India rape laws are not gender-neutral. Section 376 of the IPC only deals with rape against women and with the non-inclusion of Section 377 in the BNS, rape of men and transgender persons will become a non-offense post July 1,” said Mr. Grover.

In such cases, only Sections related to grievous assault can be invoked, which have far less legal consequences than Sections related to rape, he added.

Cases registered before July 1, under Section 377, will continue to be governed by the IPC while those filed after that will not. “Two legal systems will run parallelly and cases of the same nature will have different punitive consequences,” he warned.

Further, Supreme Court advocate Yashaswi S.K. Chocksey said that though the Transgender Bill’s Section 18 deals with sexual abuse, the jail term for the offence ranges from six months to two years, while the jail term when Section 377 is invoked ranges from 10 years to life imprisonment. He also said that the non-inclusion of Section 377 or an alternative in the new code leaves victims of such cases at the mercy of the police.

“When Section 377 is invoked, the intensity with which the case is treated is much higher when compared to a case where Sections related to grievous hurt are invoked. It’s reflected in the urgency of arrests or the ease of getting bail. In the latter case, if the accused is not arrested, he can tamper with evidence and impact the course of investigation,” said Mr. Chocksey.

A senior official of the Delhi Police, who attended training sessions for the BNS, told The Hindu that in none of the training sessions were they instructed on how to deal with rape cases of men and transpersons.

“Despite a Parliamentary Committee raising concerns over the non-inclusion of Section 377 or similar sections, the government decided to go ahead without any amendments. For law enforcement bodies, this will create a host of problems,” he added.

Adding to the list of concerns, Ms. Nundy also said that the non-inclusion of Section 377 would also imply that men who have committed anal rapes of their wives will also not face criminal consequences if the new code is not amended by the government.

Further, Mr. Grover added that this would leave animals in a very vulnerable position. “Animals already don’t have any agency and will be far more vulnerable since those who rape them will go scot-free,” he added.