Why in News?

• The Bharatiya Nyaya Sanhita (BNS) 2023, the proposed replacement for the Indian Penal Code (IPC), does not contain IPC Section 377 (or an equivalent section), which was read down by the Supreme Court in 2018.

What’s in Today’s Article?

• Background (About IPC, Section 377 of IPC, Supreme Court’s Judgement)
• Impact of BNS Bill on Sexual Offences Against Men

Background:

• The Indian Penal Code was drafted by the first Law Commission which was chaired by Thomas Babington Macaulay in 1834. The code came into force in January, 1860.
• The Bharatiya Nyaya Sanhita Bill, 2023 aims to repeal and replace the IPC.
  • The Bill was introduced in the Lok Sabha and it has now been referred to the Standing Committee.
• The BNS Bill proposes several changes in the existing provisions. While the IPC has 511 sections, the BNS Bill contains 356 provisions.

What is Section 377 of the IPC?

• Section 377 of the IPC states:
  • “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 explanation to the provision states that “penetration is sufficient to constitute the carnal intercourse necessary to the offence.”
• For decades, the LGBTQ community and others argued that this section was discriminatory, and provided legal protection to the harassment and intimidation of gay couples.

Navtej Singh Johar v. Union of India Case (2018):

• In September, 2018, a five-judge bench of the Supreme Court unanimously decriminalized consensual sex between two adults irrespective of their gender and partially struck down Section 377 of the IPC.
• The court referred to those areas of the section that criminalized consensual unnatural sex as “irrational, indefensible and manifestly arbitrary”.
• The court also noted that Section 377 was used as a weapon to harass members of the LGBTQ community, resulting in their discrimination.
• However, in its ruling, the court also made it clear that other aspects dealing with unnatural sex with animals and children still remained in force, and that it was confining its order to consenting acts between two adults.

Introduction of Bharatiya Nyaya Sanhita (BNS) Bill, 2023 & Its Likely Consequences:

• The IPC Section 377 offered protection to non-minor males from rape. Now, in the proposed BNS Bill, this section is gone.
• In the IPC, Section 375 defines rape and lists seven notions of consent which, if violated, would constitute the offence of rape by a man. In the proposed BNS, rape is covered under Section 63.
• Critics have pointed out that if the BNS Bill is passed in its present form, groups including male victims of sexual assault, could lose the legal protection accorded to them.
• This, it is argued, is because the offence of “rape”, as defined in the proposed BNS, is gendered — which means that it can only be committed by a man against a woman.
• In 2018, when the SC passed its verdict in ‘Navtej Johar’, several police officers had said that the judgment opened up grey areas.
• It was argued that guidelines were required to deal with cases where, say, a gay man withdrew “consent” and lodged a complaint against their partner.
• As on date, India’s laws on sexual assault do not recognize men as victims of rape.

Conclusion:

• Under the proposed Bharatiya Nyaya Sanhita, 2023, there is no provision made to protect male victims of sexual assault.
• Currently, the IPC protects “man, woman or animal” against such acts of violence.
• If the BNS is passed in its present form, men could lose the legal protection accorded to them.