IMPACT OF ABROGATION OF SECTION 377 IN NEW BNS

Proportion
Categories: Journal, JOURNAL

 THE LAWWAY WITH LAWYERS JOURNAL

VOLUME:-12  ISSUE NO:- 12 , JUNE 15 , 2024

ISSN (ONLINE):- 2584-1106

Website: www.the lawway with lawyers.com

Email: thelawwaywithelawyers@gmail.com

Authored by:- Nirmay Gupta

IMPACT OF ABROGATION OF SECTION 377 IN NEW BNS

 

Abstract

India has been following an old system of criminal laws that were first introduced by the British in the 19th century. Though amended several times, they started to lack in fulfilling the aspirations of the modern Indian society. Government of India in 2023 introduced newly structured and amended criminal law bills in in the parliament and they were passed to become acts. As the new acts are set to be implemented from 1st of July, 2024 there have been a lot of praises and critics for the same. This article covers the issue of abrogation of a law that was a part of old criminal laws but is now being abrogated in the new laws. This section relates to unnatural offences and deals with sexual offences against men, women and animals. Pros and cons of this abrogation have been discussed in the given article in order to understand what we are getting and what we are losing with the act of this abrogation by the legislation.

 

Key Words :- Sexual Offence, Homosexuality, Rape, Men, Women, Animals 

 

Introduction

Since the Indian Penal Code was adopted in 1860, or more than a century ago, Section 377 of the IPC has been in force. This article has a lengthy history, but in the seminal decision of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the learned and honorable Supreme Court of India upheld the principles of Articles 21, 14, 15, and 19 of the Indian Constitution, decriminalizing homosexuals’ consensual sexual relations, which were previously illegal under IPC 377, a section pertaining to unnatural offences. As stated explicitly by the terms included in this section, animals as well as men and women fall within its purview.

Any intercourse related activity which is not of the very nature that is naturally accepted by people and the society can be taken into cognizance using this section as a base. Supreme Court has always been very particular about the social practices and thinking of the society. In this case too they asserted that when we are destructive of an identity, that is equivalent to quashing dignified existence. That infers, if a person being homosexual cannot reveal his/her identity with freedom, that makes it equivalent to not living a life with a dignified status.

Tracing back the history of IPC 377 section, formerly only penile-vaginal intercourse was recognised to be within the ambit of rape. Definition of rape under section 375 was not widened until it was amended by 13th act of 2013 to include Anal penetration, oral penetration and other unnatural acts. In the time before 2013, anal intercourse as well as hymen if ruptured by finger does not amounted to rape, as held in Sakshi v. Union of India, (2004) 5 SCC 518. Though the apex court of India observed that the experienced trauma and humiliation of the acts other than penile-vaginal intercourse is equivalent to the trauma and humiliation that was caused due to rape as it was defined then, and thus they can be understood under Section 375/376 as well as section 377. This clearly infers that anal penetration that is being done with concent would also have been fallen into the ambit of IPC 377 as an offence classified as unnatural offence. Not only anal, but even oral penetration was in ambit of the section as per the observation held by the court in the case of Lohana Vasantlal Devchand v. State, 1967 SCC OnLine Guj 22. 

Talking of Homosexuals, homosexuality and their acceptance in the society, Punishments for sodomy dates back to 13th century AD in Britain though the act of sodomy and concentual homosexuality and related intercourse was removed from the lists as a crime in Britain by the year 1967, long after India got out of British rule, when the Sexual Offences Act was passed in the parliament of Britain. Taking into account the chronological position of India in the said issue, it will be essential to quote the case Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762, Where Delhi high Court held that any sexual activity not penile-vaginal in its very nature will be falling into the boundries of 377 of Indian, Penal Code unless and until the legislature decides to change the legislation. It was a rigid view of the court that followed the literal interpretation of law at that point of time. It was argued in a another case, Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1, that less than 200 people have been prosecuted under IPC 377 since 1860. Additionally, it was argued that 377 is being utilized to harass the LGBT population, depriving them of their right to a dignified life. Although this argument was not used as support for the idea that the statute disregarded the existing provisions of the constitution, the learned highest court upheld the earlier ruling of the Delhi High Court.

 A lower number of prosecutions was not considered a good justification to overturn a legislation. The literal interpretation of the statute was once again accepted by the Supreme Court. The position on homosexuality was quickly reversed after the Supreme Court of India established this position. This was the case in the 2017 case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, which overturned previous interpretations of section 377 that included homosexuality as an offence within the purview of the aforementioned section. Since LGBT individuals are a part of Indian society, the Supreme Court of India stated that attitudes about them have shifted in favor of acceptance and that they should be allowed to live with the dignity that comes with being who they are.

Now as we are set to welcome new criminal laws in India, There will be no section in the new Bhartiya Nyaya Sanhita which can resonate with the existing IPC 377. The words of 377 IPC gives a way out to the learned judiciary to prosecute women and the transgenders against the offence they commit relating to the activities of sexual nature and is probably the only law under IPC to do so. What will be boons and the a-foreseen repercussions of this abrogation as 377 is no more about homosexuality but it takes rape against men and animals as an offence which section 375 and 376 fails to do so? 

What is do section 377 consist of?

Section 377 is a very small part of the penal provisions in India though they are not very easy to understand prima facie. There has been a long drawn judgement chain over a timeline of last 50 years that suggest that the section contains three ingredients, first being the carnal intercourse that means any action of intercourse that requires any kind of penetration except for the penile-vaginal penetration that if not done with consent amounts to rape and is covered in section 375 and section 376 of Indian penal Code. However both of these sections does not contain the penetration that is not natural in nature, that is it is not done by a man against a woman (as suggested by the word ‘her’ that is used for victim), for which we had a need of section 377. Second is the Voluntary action of the carnal intercourse, meaning that the action of carnal intercourse being performed should not be under any such influence that  might deem the action as involuntary, that is the action should not be under any threat or enticement by a third person. Also the person committing such an offence should not be of unsound mind at the time of commission of the offence. Third ingredient is that the action should have been performed against a man or a woman or an animal by a person. Here the word used for the one who commits the offence is ‘whoever’ suggesting gender neutrality of the law. This law is applicable to anyone irrespective of gender and the age of person. Also, the expression ‘Against men, women or animal’ also suggest that there is no age limit prescribed for the one whose against the offence has been committed. Thus, this section brings under its ambit an offence commenced and committed by any person of any age irrespective of gender against any person of any age gender not paying any relevance. The only relevant point to be considered here is that offence is done by a human being against another human being. Any such kind of intercourse that is satisfying all the three ingredients is deemed to be an offence under the section until we move into the era of the new Bhartiya Nyaya Sanhita (BNS).

What is the problem in the new laws that we might face?

 

 The question of these offences registered under the section 377 now before the implementation of new laws and the way they would be taken cognizance of after implementation of the new BNS, still lingers upon the government, stakeholders and the learned judiciary of our country. It is a question to think upon that a crime is being committed but it will be the gender of the offender that would decide if the punishment would be given or not. Gender discrimination will increase involuntarily id gender specific laws will exist in order to curb crime. If a crime has been committed against an animal, like cases of which are being reported today, we would be left with no shield or provision to protect them and punish the offender for the same.

What is the current legality status of homosexuality under this section?

After a lot of hot discussions, debate and more than a decade long paper trail having several judgements with contrary view points, homosexuality has been removed from the ambit of this particular section in the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, upholding the basic fundamental rights to equality, freedom and life. People can neither be treated unequally on the basis of their gender identity nor they can be deprived of their right to life. Society and mindset of society have changed a lot since the act was implemented and to progress as per the mindset of society laws need to change too. Since the Indian Supreme Court changed how section 377 was interpreted in 2017, a person is now allowed to express their opinions and pick who they want to have a sexual relationship with. Even though it is no longer a topic of discussion, there is still a legal provision that excludes homosexual activity from its purview.

What are the other things that makes this section relevant and how would they be taken cognizance of in new laws?

It is not that the section after the judgement has lost its relevance but it still works as a shield for Men and for animals against rape, a point of view which in not taken into account by Section 375 and 376. Section 375 clearly states ‘A man is said to commit rape’ suggesting that only a man can be charged of the offence of rape under section 375 while the word ‘her’ in the description of section 375 suggest the person against whom the crime of rape is being committed is a female. Talking for the issue of rape against men, we divide the cases into two categories, first in which the crime that has been committed is against a male less than 18 years of age and second in which the crime has been committed against a male equal to or greater than 18 years of age. Most of the cases that we have seen in past are of first category that is the rape against men has been committed when the age of men is less than 18 years, when they have not attained adulthood. In many of these cases courts have iterated and reiterated that age is not a criteria for charging the action commenced and committed as a crime under the ambit of the aforesaid IPC 377. We have a unique act now called the POCSO act for children under the age of eighteen. In order to protect children from sexual offenses, the legislature enacted the POCSO act in 2012. Prior to this, there was no law that particularly protected children from sexual offenses. Offence against a minor girl was put under the ambit of section 375/376 while provisions of the Indian Penal Code were interpreted in such a way to include sexual offences against a minor boy. Now as we have POCSO act with us which in itself is of a very strong punitive nature, more than that of section 377 thus, abrogation of the section would not play a major role in case the offence has been committed against men below the age of 18 years. It will anyway be tried as per POCSO act, 2012 as it is the specific act for such kind of offence. Similarly offence against a minor girl will be charged under POCSO act, 2012. Talking of the persons who have attained the adulthood, a female who have attained adulthood can be safeguarded by sections 375/376 while there will be no provisions for males who have attained their adulthood to be safeguarded by in case the section no longer remains into existence. Though we are achieving our goals of gender neutrality sooner than expected, we still lack gender neutrality in the rape laws as they exist in IPC and as they are going to be implemented in the new BNS. We can cover sexual offences against men and transgender people in the category of offences against the body, which includes Assault (section 351 of IPC or section 130 of BNS) and Hurt/Grievous Hurt (Section 319 to section 323 of IPC or section 114 to section 117 of BNS) punishment of which is almost equivalent to punishment of section 377 only if the act of the offender has caused some kind of deep physical injury while committing the offence. So it would not be incorrect to assert that sexual offences against men and transgender people will not have a different stance as compared to the previously held stance if we look from the punishment point of view whereas if we look it from a view of practical situations, we know that every carnal intercourse may not extend to grievous hurt, thus not making the offender liable for punishment. This might hamper the essence of justice and morality. Sexual offenders can be punished within ambit of IPC section 320 only when the offence amounts to grievous hurt too otherwise despite committing an offence punishable for one selective gender of the society they would not be charged with the offence. This is a limitation of abrogating the section that might lead to disparity in the system of justice. It may also result in the violation of everyone’s fundamental right to equality. The Indian Supreme Court and many High Courts have consistently maintained that while it is up to the legislature to decide whether or not to repeal a legislation, it is the responsibility of the court to operate in accordance with the law as written. This assertion has been made at various times and in a variety of situations. As India moving to new modernised system of criminal laws as it was passed in 2023 by the parliament of India from the old criminal law regime being followed since more than a century, legislature has removed the section from the new laws and has not introduced any similar section as well thus posing a threat to the animals too who are being sexually harassed by the humans. The decision is being seen by the animal lovers, NGOs and social workers as a point of disgrace. Though voluntary or forceful carnal intercourse of humans with animals may not be considered civil in nature as per the social mindset but it is the hard reality of the society in today’s time and the incidents regarding the same are being reported and being fought against by several social workers, NGOs, society as a whole and the government. Even though these incidents are neither supported nor promoted, still these events are being reported. The offence that is in existence and is still perceived as an offence in the mindset of society would now no longer be an offence on papers as soon as the new laws acquire their higher seats. It does not matter if the cases against the animals reported under this section is less in number, as long as anything remains an offence in eyes of society, it must remain as an offence in the laws made for the society. Lastly, not forgetting the biggest benefit of this abrogation, A lot of unwanted cases which include consensual but unnatural intercourse as it is defined will no more be another burden to the Courtrooms in India.

 

Conclusion

A lot of gaps and loopholes can be seen in the process of transformation that are yet to be debated upon and to be filled upon by the legislature. There are a lot of recommendations too that are made to the government to introduce such a section in new laws from organisations like PETA, standing committee of home affairs and many other individuals and stake holders present. This kind of law has not been introduced in the new laws yet but there is always a scope of amending and evolving the laws in future as per our needs. One thing is a surety, that we would be needing a lot of paper trail and judgements in order to balance the old stance upon the issue with the new one.

 

Bibliography

  • Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
  • Sakshi v. Union of India, (2004) 5 SCC 518
  • Lohana Vasantlal Devchand v. State, 1967 SCC OnLine Guj 22.
  • Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762
  • Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

 

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