This article has been written by Tadepalli Aditya Kamal, pursuing 3rd year BBA LLB at KLE Law College, Bengaluru.
Introduction:
On August 11, 2023, the Ministry of Home Affairs introduced a new bill, publicly referred to as the Bharatiya Nyaya Sanhita Bill 2023, in the Lok Sabha. This bill underwent modifications by the Standing Committee, making notable changes compared to the existing Indian Penal Code of 1860. The Bharatiya Nyaya Sanhita Bill 2023 eliminated Section 377, which addressed Unnatural Offences, encompassing non-consensual same-sex acts, necrophilia, and bestiality. Bestiality involves sexual intercourse between a human and an animal, while necrophilia refers to sexual offenses against a deceased body. The origin of Section 377 in the Indian Penal Code dates back to 1862, during the British colonial era in India.
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Before its enactment, there was no regulatory framework governing sexual conduct in the country. As per the Indian Penal Code of 1860, Section 377 defined Unnatural Offences as engaging in carnal intercourse against the order of nature with a man, woman, or animal, punishable by imprisonment for life or up to ten years, along with a fine. The term ‘homosexual’ is described in the Black Law Dictionary as a person attracted to someone of the same sex. The scope of Unnatural Offences includes the exploitation of one female by another, one male by another, a deceased body by an individual, or an animal by a human. The omission of provisions related to Section 377 in the Bharatiya Nyaya Sanhita Bill 2023, addressing unnatural offences, has introduced ambiguity in the Indian Penal Code of 1860. Section 63 of this bill defines ‘rape’ as a man inserting his body part, such as a penis or any foreign object, into a woman’s body. However, the bill’s definition neglects the possibility that a woman can also commit rape, creating a discrepancy in addressing this heinous crime.
Theoretical Background:
- Human Rights: The idea of Human Rights is frequently linked to Divine rights, also referred to as Natural rights or God-given rights. Human rights comprise a set of inherent entitlements that individuals possess simply by virtue of being human. This assertion is grounded in the belief that these rights are fundamental and essential, inherently belonging to every human being by the mere fact of their birth. The Fundamental Rights outlined in Part III of the Indian Constitution draw inspiration from the concept of Human Rights. On the global stage, the concept of Human Rights is exemplified by the Universal Declaration of Human Rights, 1948 (UDHR), considered one of the most significant declarations on Human Rights in the modern era. Article 3 of the UDHR specifically addresses the Right to Life, a pivotal right in contemporary times.
- Discrimination: The minority group of homosexuals has undeniably encountered numerous challenges in the past concerning their rights and freedoms. The absence of any provision in the newly introduced Bill to criminalize sexual offenses against homosexuals represents a regressive step in the ongoing struggle for equality and the fight against discrimination. If this Bill transforms into law, it effectively places homosexuals in a position where, like men, animals, and deceased individuals, they lack a legal safeguard against sexual offenses targeting them. The new legislation undermines the progress made through hard-fought battles against discrimination faced by homosexuals, as it denies them the right to combat sexual offenses.
Arguments/Claims:
- No Provision for Homosexuals and Necrophilia: This paper argues that the omission of provisions related to unnatural offenses in the Bharatiya Nyaya Sanhita Bill, 2023 creates a significant gap in India’s criminal law. Section 377 previously addressed offenses against the order of nature, albeit rare occurrences. However, the disregard for this category of crime results in these offenses going unpunished due to the absence of specific laws. The removal of laws dealing with unnatural offenses gives offenders an advantage, as there are no legal restraints to deter such actions. This oversight by the Indian legislature amounts to a violation of the Right to Equality for the entire community, including homosexuals, men, and women.
The new Bill fails to provide any legal recourse for the families of sexually exploited deceased individuals, previously covered under unnatural offenses such as Necrophilia. In cases where living females are sexually exploited or raped, the new Bill offers proper channels for legal action. However, there is an evident inequality in cases involving men, as there is no provision for males seeking protection against rape or sexual exploitation. Unnatural offenses against males are not considered crimes under the new Bill. Under Section 377 of the Indian Penal Code, injuries resulting from same-sex exploitation were covered, providing a remedy under criminal law. With the exclusion of Section 377 provisions in the new Bill, there is no relief for injured persons during same-sex intercourse. Recent cases of Necrophilia in India, including the Nithari Case and a 2020 incident in Assam, highlight the absence of specific laws in the new Bill governing offenses against dead bodies. This absence creates challenges in providing justice to victims and allows offenders to go unpunished. The lack of provisions for Necrophilia contradicts the aim of the Indian criminal law system, which is to deliver justice to the victim.
- No Provision for Sexual offences against Animals: Under Section 377 of the Indian Penal Code 1860, any human engaging in the sexual exploitation or rape of an animal was liable for charges under the offense of Unnatural Offense. However, the new Bill presented in the Lok Sabha lacks a provision addressing unnatural offenses, including the sexual exploitation of animals. This absence in criminal law creates a grey area and introduces ambiguity for victims of such offenses. In India, apart from Section 377 of the Indian Penal Code, there is no specific rule or provision protecting animals from sexual exploitation or rape. The introduction of the new Bill undermines the foundation of this provision, creating a gap in the legal framework.
Judicial pronouncements, such as in the case of Karnail Singh and Ors. vs State of Haryana, recognized animals as legal persons. The Supreme Court, in the case of Animal Welfare Board of India v. A. Nagaraja & Ors, emphasized compassion for all living creatures, extending the Right to Life to animals. However, the new Bill does not include a provision to protect animals from sexual exploitation or rape, disregarding the Supreme Court’s direction in this regard. While the proposed Bill addresses mischief involving killing or maiming animals in Section 323, it does not cover sexual exploitation or rape of animals. Existing legislations in India related to animal welfare and protection, such as The Prevention of Cruelty Act, 1960, and The Wildlife Protection Act, 1972, also lack provisions regarding sexual exploitation or rape of animals. In the case of Navtej Singh Johar v. Union of India, Section 377 was deemed unconstitutional, but certain aspects related to the sexual exploitation of animals were retained. Section 377 has played a crucial role in cases where individuals were charged for sexually exploiting animals, such as incidents involving the rape of a cow in Madhya Pradesh and a goat in Haryana. The current Indian legal system does not explicitly address Bestiality, and it is an opportune time to introduce amendments in the new Bill to rectify this. Internationally, countries like Canada, the USA, and the UK have criminalized Bestiality. Canada’s Criminal Code Section 160 deals with Bestiality, while in the UK, the Sexual Offences Act 2003 addresses this unnatural offense. The absence of a provision dealing with Bestiality in the new Bill represents a backward step in the realm of Animal Welfare.
- Section 63 of the Bill is not Gender Neutral: According to Section 63 of the Bharatiya Nyaya Sanhita Bill, 2023, the definition of rape is outlined as a crime where a man penetrates a woman’s body with his penis, any other body part, or a foreign object without her consent. This definition is considered vague and biased in favour of females, as it exclusively addresses scenarios where a man is the perpetrator and a woman is the victim. The section and the entire Bill are criticized for being gender-biased, neglecting the possibility of a man being raped, and failing to address rapes committed by women. By not making Section 63 gender-neutral and not incorporating provisions for unnatural offenses, the Bill is accused of ignoring the potential for males being victims of rape, whether perpetrated by women or other men.
This omission leads to ambiguity in determining under which provision to file charges against guilty offenders, particularly in cases of women raping other women or men. Despite the growing issue of male rape, the new Bill is seen as a disappointment for male victims. The Indian Law Commission’s 172nd recommendation in 2000 suggested framing rape laws in a gender-neutral manner, offering protection to males from this heinous offense. The striking down of Section 377 of the Indian Penal Code in 2018 left a void in the legal framework for male rape cases. Section 377 previously acted as an equalizer, but without it, rape laws are perceived as gender-biased toward females, violating Article 14 of the Constitution of India, which guarantees the right to equality for every citizen.
The current rape provisions in the Indian Penal Code and the Bharatiya Nyaya Sanhita Bill are criticized for assuming males can only be offenders and females can only be victims, ignoring the reality that males can be victims and females can be perpetrators. Recent cases, like one in Jalandhar city where four females abducted and raped a male, emphasize the need for gender-neutral rape laws and provisions for unnatural offenses to protect males from sexual exploitation. The Bharatiya Nyaya Sanhita Bill, 2023 is seen as a step backward in addressing the rights of adult males against sexual exploitation and rape, raising questions about the perceived inequality in protecting the rights of males compared to females.
Reasoning:
This paper argues that the introduction of the Bhartiya Nyaya Sanhita Bill, 2023 introduces ambiguity regarding unnatural offenses committed against homosexuals, men, animals, and women. The absence of provisions that were covered by Section 377 of the IPC in the new Bill, coupled with a complete disregard for crimes of an unnatural nature, leaves a void in the realm of Criminal law in India. The neglect of this particular area of crime significantly impacts the Right to Life and personal liberty of Indian citizens. The crucial question arises as to which provision of criminal law a victim should use to file a case in the event of any unnatural offense. Additionally, if a deceased male or female is sexually exploited, the new Bill lacks criminal remedies against the offender. These uncertainties have arisen following the introduction of the Bhartiya Nyaya Sanhita Bill, 2023, and the answers are not found within the provisions of this newly introduced legislation.
Conclusion:
After a thorough examination of the Bhartiya Nyaya Sanhita Bill, 2023, and a comparative analysis with other Indian and international legislations, the author(s) have concluded that the new Bill fails to meet the needs and expectations of Indian citizens. Additionally, the Bill introduces ambiguity among various implementing authorities. Critically, the gender bias in favour of females and the neglect of the rights of the male community are identified as significant issues. The Bhartiya Nyaya Sanhita Bill, 2023 requires serious consideration and amendments. The author suggest specific changes and policy adjustments. They propose a review and amendment of Section 63, which deals with rape, to make it gender neutral. This recommendation stems from the increasing number of cases involving males being raped by females and other males. The authors argue that it is an opportune moment to alter societal perceptions regarding rape offenders and victims. They advocate for the inclusion of provisions addressing same-sex rapes and instances where men are victims of rape. Recognizing the surge in cases of bestiality in the Indian subcontinent, the author calls for acknowledgment of this crime and the introduction of stricter laws within the Indian criminal justice system. The new Bill should incorporate provisions dealing with bestiality, clearly defining the crime, and outlining precise punishments. The authors also emphasize the need for similar clarity in the case of necrophilia, considering these terms are not commonly understood by the public. In reference to Section 377 of the Indian Penal Code, the authors note that the Supreme Court, in 2018, partially struck down provisions of this section, upholding non-consensual sexual acts performed on animals. They argue that this should have been considered when framing the new Bill in alignment with the Supreme Court’s directions.
