The entire nation is gearing for the July 1st, 2024 implementation of the new criminal laws, which replaces the Indian Penal Code (IPC) 1860 with Bharatiya Nyaya Sanhita (BNS), the Indian Evidence Act 1872 with Bharatiya Shakshaya Adhiniyam (BSA), and the Criminal Procedure Code (CrPC) 1973 with Bharatiya Nagariik Suraksha Sanhita (BNSS). However, there is a large hue and cry by many sections of the society over its implementation. Apart from the teething troubles, there are still some grave exclusions of a few important sections of IPC which raises many questions on the efficacy and impact on the society. Seemingly progressive, the BNS completely omits the controversial Section 377 of the IPC, which makes “carnal intercourse against the order of nature” illegal.
Section 377 of the IPC criminalised the non-consensual carnal intercourse against the order of nature between two adults, and bestiality (sexual intercourse with animal). Section 377 of the IPC says “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.”
Initially section 377 criminalised the unnatural sex between same genders or between man-woman and sex with animals. However, in Naz Foundation case and Navtej Johar vs Union of India constitutionality of section 377 was contested. It was claimed that Section 377 violates the fundamental rights protected in Articles 14, 15, 19, and 21 of the Constitution since it conceals consensual sexual activity between two adults in private. Additionally, they contended that since “sexual orientation” is included in the definition of “sex” as it appears in Article 15, discrimination on the basis of sexual orientation is prohibited. They essentially asked the court to declare section 377 of the IPC to be ultra vires to the constitution since it forbids adults from engaging in consenting sexual conduct. The Hon’ble Supreme Court of India held that “punishing a person for his or her sexuality and sexual choices is violative of Article 14,15 & 21 of the Indian Constitution.” Thus, the court partially struck down the section 377 of the IPC which penalised the consensual sexual intercourse between the persons of any gender. However, the non-consensual sexual intercourse against the order of nature and sexual intercourse with the animals are stilled punishable under this section.
Currently in the BNS there is only a provision of punishment for the offence of Rape (by Man against women) and no provision exists to penalise the sexual offences against the man, LGBT+ community and animals. Despite the parliamentary committee’s recommendation to include the provisions pf section 377 of the IPC in BNS, the non-inclusion created the vacuum in the legislation, makes the said community more vulnerable towards sexual offences and strikes the very basic fundamental right to live with dignity. The framers must have either retained the provisions under the section 377 of IPC or could have added a new section making unnatural non-consensual sex as an offence against the Man, and LGBTQ+ community.
As the offense of rape is gender-specific and such an offense against a man is not punishable, the only relatable provision is that an offense of rape against a man by another man without his consent is punishable under Section 377 of the IPC, but the omission of this provision from the BNS will leave no scope for the man and sexual minority victims to have a legal recourse. Even though the government assured the further amendments in the BNS and urged the states to amend as per their geo-social conditions, still the central government missed a chance to make the sexual offenses gender neutral. The directions of the Union government officials to the police department to initiate the allied charges like wrongful restraint, hurt etc for the sexual offences against a man and a transgender is an eye wash measure and shows the laxity of the government towards the sexual minority victims.
Another significant exclusion from the BNS is the offence of Bestiality under the same section 377 of the IPC, which may make animals more susceptible to mistreatment and exploitation. This might result in more instances of animal abuse and suffering, making it challenging to convict those who commit such crimes. For this reason, PETA India has asked the Union Ministries of Law & Justice and Home Affairs to keep Section 377’s criminalization of bestiality in place while changing its current wording to decriminalise sexual acts between consenting adults and same-sex partners.
The Hon’ble Supreme court in Animal welfare Board vs A Nagaraju & others held that “Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity, so far as animals are concerned, in our view, ‘life’ means something more than mere survival or existence or instrumental value for human beings, but to lead a life with some intrinsic worth, honour and dignity.”
It is vital that the Indian government maintains its criminalization of bestiality under Section 377 and to impose a maximum 10-year prison sentence as a means of deterring animal sexual assault. The Prevention of Cruelty to Animals Act, 1960, the main piece of legislation protecting animals in our country, has to be changed to make bestiality a crime that is punishable by law and to toughen the penalties for animal cruelty. This will protect not only the sacred wildlife of India, but also our dear citizens.
In order to protect animals and sexual minorities from abuse and to uphold their right to a dignified life, the government must now reconsider the exclusion of the offense of unnatural sex from the BNS and should criminalize either by amending the current provision or adding a new section in the BNS. As per legal requirements, in the event of a legal wrong, a remedy must exist. In addition to being unlawful, failing to offer redress for offenses covered by Section 377 is unconstitutional.
V. Abhinav Deep Dora is an Assistant Professor of Law at Vignan Institute of Law, Vignan University, Andhra Pradesh and Dr. Alisha Verma is an Assistant Professor of Law at Symbiosis Law School, Pune, Maharashtra.