The Thoughtless Sec 377 IPC Oversight in Bharat Nyaya Sanhita

Section 377 of the Indian Penal Code, as it originally stood, was interpreted to punish men and women and for the act of “unnatural sex”.

Unnatural sexual acts were held to be penetrative penile–non-vaginal sexual acts, that is penile–oral, penile–anal sex and sexual acts between human beings and animals.

The rationale was that sex was only for procreation— to beget children. “Unnatural sex” does not beget children. That is why it was supposed to be “unnatural”.

Consent was irrelevant

The Delhi High Court in Naz Foundation and the Supreme Court in Navtej Johar held that consent was relevant when it comes to defining the criminality of sex other than what had traditionally been perceived as ‘natural’.

Instead of striking down Section 377, the two courts held in the two cases that if acts covered by Section 377 were consensual they would not be criminal. Thus, the net result is that only non-consensual sexual acts covered by Section 377 remain punishable.

After the decision in Naz Foundation and before the decision in Navtej Johar, and number of events took place impacting how the law viewed sexual acts.

First, the Supreme Court held that transgender persons have to be given recognition based on their self-identified gender. This was firmed up in the Transgender Persons (Protection of Rights) Act of 2019 and the Rules thereunder, under which a transgender person is entitled to obtain firstly a transgender certificate and thereafter a male or female certificate.

The Transgender Persons (Protection of Rights) Act explicitly provides for sexual abuse under Section 18, which can be punished with imprisonment of up to two years, or fine, or with both.

“Unnatural sex” has now to be interpreted to mean to be penile penetrative sex between a man and a woman, a man and another man, and a transgender person with a man or woman as also between human beings and an animal.

Second, in 2012, the Protection of Children from Sexual Offences (POCSO) Act was brought into force. The POCSO Act is gender-neutral. Thus, an adult, man, woman or transgender person, having sex with any minor (less than eighteen years of age), boy, girl or transgender child, amounts to an offence under the POCSO Act.

Consent is irrelevant, as a child cannot consent.

Third, the definition of rape under Sections 375 and 376 of the IPC, providing for punishment, was amended in 2013. The regime under Sections 375 and 376 was always gender-specific, that is, the law provided that only a man can rape a woman if the act was non-consensual on the part of a woman.

In India, the law does not recognise a woman raping a man. That apart, the Act covered by Section 375 of the IPC was limited to the penile–vaginal penetration.

In 2013, though the definition of rape in Section 375 IPC continued to be gender-specific, the acts covered were expanded from penile–vaginal penetration to include acts, if a man:

(a) 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 

(b) 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 

(c) manipulates any part of the body of a woman so as to 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

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

against her will or without her consent.

Thus, rape remains a gender-specific crime, a man raping a woman, but it is no longer restricted to non-consensual penile–vaginal sex, and now includes all other sexual acts.

Under Section 377 of the IPC, a person, man or a transgender can be punished if there is non-consensual penile penetrative sex. Punishment for an offence under Section 377 is from up to ten years or up to a life term and the person is also liable to a fine.

It is in this context that we have to appreciate the deletion of Section 377 of the IPC in the Bharatiya Nyaya Sanhita (BNS).

Chapter V of the BNS deals with offences against women and children and a sub-chapter of that, Sections 63 to 73 deals with sexual offences.

There is a complete absence of anything resembling what is contained in Section 377 of the IPC. With Section 377 gone in the BNS, a man or a transgender person subjected to non-consensual penile penetrative sex is left without any remedy under law sex as it is no longer an offence.

Moreover, there is no offence if a man, woman, or transgender person has sex with an animal.

It is obvious that the deletion of Section 377 has been done without proper thought going into it and without any discussion in the Parliament. The sooner that this is rectified the better.

The law requires that if there is a legal wrong there must be a remedy. Not providing a remedy for acts covered under Section 377 is not only illegal but unconstitutional.

Anand Grover is a senior lawyer at the Supreme Court and co-founder of The Leaflet.

Courtesy: The Leaflet