BHARATIYA NYAYA SANHITA

The Bharatiya Nyaya Sanhita, 2023 (Act No. 45 of 2023, Dated 25^th December 2023), BNS for short, came into effect on 1^st July 2024, less than a month after the Modi government assumed its third term in office. The bill was hastily passed in parliament at a time when 150 opposition members were suspended by the Speaker for “rowdy behaviour.”

Chapter Five of the BNS is titled “Of Offences Against Women and Child [sic]/Of Sexual Offences.” Sections 63 to 79 of the chapter correspond to Sections 375 and 376 (1), (2) and (3), as well as Section 376 A, B, C, D and E of the old Indian Penal Code (IPC). Some sections also correspond to Section 354 A, B, C and D of the IPC. In addition, a couple of new sections are introduced in the chapter. They pertain to “sexual intercourse by employing deceitful means,” and gang-rape of minor girls under the age of 18, where the punishment is stringent. It includes life imprisonment “which shall mean imprisonment for the remainder of that person’s life,” or even the death penalty. All the offences included in the chapter are cognizable offences that invite arrest.

Ironically, the notorious Section 377 of the Indian Penal Code, which criminalized homosexuality, has been left untouched. Some months ago, a news channel reported that the government planned to modify the wording of Section 377 in the BNS by adding a clause that made non-consensual gay sex, even among adult homosexuals, a cognizable offence. But wasn’t this already implied in the reading down of Section 377 by the Supreme Court in September 2018? Where was the need to specify it? Was this a roundabout and deceitful way of re-criminalizing Section 377, given that consent, or the absence of it, is highly subjective and difficult to prove, especially in a scenario that does not recognize same-sex marriage and civil unions? It would have been desirable, however, for the text of Section 377 to be altered to delete the trivial reference to bestiality in the section. It has given impetus to the likes of Baba Ramdev to facetiously argue that if homosexuality was legalized, the next thing that human beings would ask for is to be allowed to have sex with animals!

The sexual crimes specified in Sections 63 to 79 of the BNS deal with rape, marital rape during separation, gang-rape, molestation, voyeurism and stalking. Only some of these sections specify the gender of the victim to be a “woman.” For example, Sections 63 and 64 that deal with rape only specify the gender of the victim as female in the case of minor girls. The punishment here is age-related—it is less stringent if the girl is under 16 years of age, and more stringent if the girl is under 12 years of age, making the perpetrator liable to capital punishment. Incidentally, while women’s groups have for long been lobbying to make marital rape a cognizable offence, the BNS makes marital rape a crime only if it happens while the couple are separated.

Apart from rape, the sections pertaining to “death or…persistent vegetative state of victim” (Section 66), sexual intercourse by a person in authority (Section 68), sexual harassment (Section 75), and stalking (Section 78) are, either deliberately or through oversight, left gender-neutral, without specifying the gender of the victim. This is because the sections here have merely been copy-pasted from the old IPC, without giving them much thought. The IPC of 1860 may have wanted these offences to be gender-neutral because, to Lord Macaulay’s way of thinking, a man could technically be molested, sexually assaulted, sexually harassed and stalked by a woman, including a woman employer who is his boss. But rational thinking hasn’t gone into the offences and the resultant punishment. Why, for instance, is stalking (Section 78) a gender-neutral offence, while voyeurism (Section 77) gender-specific? Section 77 of the BNC that deals with voyeurism provides a lengthy explanation of the offence in the following words: “(Any man who) watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such [an] image…” But what about the looking-over-the-wall that goes on among gay men in pubic toilets, which can easily be brought under the purview of “watching” someone engaging in a private act (urinating) in circumstances where they would usually have the expectation of not being observed? And so on.

The ’loophole’ in the law, if one can call it that, however, is to the advantage of the LGBTQIA+ community. Effeminate gay men and transwomen (especially street hijras) are frequently subjected to rape, molestation, stalking and sexual harassment in general by cis-het men. That the law does not specify the gender of the victim here would mean that the culprit(s) can be brought to book. But once again, precept differs from actual practice. Only recently, it was reported in the media that a man in Gorakhpur, UP, was gang-raped in a lodge by four men. However, the police refused to file a First Information Report (FIR) as, according to them, in post-Nirbhaya India, only a woman can claim to be raped. Male-rape has gone on for decades without redress. In exceptional cases, it has led to suicide among the victims, who are unable to come to terms with their ‘masculinity’ being compromised.

While the Bharatiya Nyaya Sanhita has come in for much criticism, for example, because it extends the police custody of an accused person from the present 14 days to a period of three months, and life-imprisonment to imprisonment for the remainder of the person’s life, it is hoped that some of what I have called the loopholes in the BNS make it possible for the LGBTQIA+ community seek justice that has been denied to us for ages. All it would take is an astute prosecution lawyer with the gift of the gab to swing the judgment in our favour.