New Criminal Laws Exclude Rape Protections For Trans Persons And Men
A parliamentary panel examining the new laws had highlighted this issue.
India's transition from the Indian Penal Code to the Bharatiya Nyaya Sanhita on July 1 has removed Section 377 completely, omitting provisions that addressed rape cases involving men and transgender individuals.
Previously, Section 377 criminalised consensual and non-consensual sex between adults of the same sex and orientations, as well as sexual offences against animals. However, in a landmark judgement in September 2018 (Navtej Singh Johar versus Union of India), the Supreme Court of India declared Section 377 unconstitutional. This decision effectively decriminalised IPC Section 377, marking a significant advancement for LGBTQ+ rights in India and affirming individuals' rights to privacy, equality, and dignity under the Constitution.
However, the court only read down Section 377 and did not strike down the law completely because the law also granted provisions that covered the rape of men, trans persons, and animals, said Shiv Sapra, partner at Kochhar & Co. "Retaining Section 377 was crucial as it provided a legal mechanism for addressing rape cases involving transgender persons and men, ensuring their access to justice," he explained.
The judgement emphasised that consensual intercourse between two adults shall not be criminalised, subject to it being voluntary and without duress. Therefore, even after the passing of the judgement, Section 377 IPC continued to criminalise non-consensual intercourse against adults and minors, said Himesh Thakur, counsel, PSL Advocates & Solicitors.
However, the new BNS law removed these provisions.
Sapra emphasised the ramifications of this legislative change. "The absence of Section 377 means that violations against the bodies of transgender individuals and men will no longer be recognised as specific offences under the new legal framework," he said. "While the Transgender Protection Act provides some basic protections, men will now need to rely on provisions related to bodily injury or other general criminal statutes."
In terms of rape allegations involving men and transgender individuals, the only viable alternative would be to register the FIR or complaint under the provisions of assault and hurt, Thakur said.
The quantum of punishment for a few sections, which may cover acts previously governed by Section 377 of the IPC, is significantly lower than the punishment provided in the IPC under Section 377, he said.
A parliamentary panel, along with other prominent groups, examining the three criminal justice laws had even highlighted this issue and recommended the re-criminalising of Section 377 under BNS. However, their recommendations were not considered. Therefore, it is clear that the omission was well thought out and not a mere coincidence, Thakur said.
Looking ahead to the implementation of BNS, Sapra emphasised the need for proactive measures. "To ensure adequate protection under modern legal standards, amendments to BNS are imperative," he said.
"These amendments should explicitly safeguard men and transgender persons against sexual violence. Furthermore, law enforcement agencies must undergo comprehensive training to handle such cases sensitively and effectively, without bias based on sexual orientation or gender identity."
