Uncovering A Legal Void - The Missing Pieces Of Section 377
Author: LawSphereX
Category: General Law
Published:
Updated:
UNCOVERING A LEGAL VOID: THE MISSING PIECES OF
SECTION 377 Varnika Singh, Head-Legal Department at the Federation of Indian Animal Protection Organisations (FIAPO)
ABSTRACT
This article critically examines the recent amendments of India's criminal justice system, marked by the enactment of the Bharatiya Nyaya Sanhita,
2023 (BNS), the Bharatiya Nagarika Suraksha Sanhita, 2023 (BNSS), and
the Bharatiya Sakshya Adhiniyam, 2023 (BSA), which replaced the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1897 (CrPC), and the Indian Evidence Act, 1872 (IEA) as of July 1, 2024. The purpose of the overhaul is to turn the Indian criminal justice system more robust, technologically advances and efficient. Additionally, these changes also aims to reform the outdated colonial legal framework. However, in this process a significant gap has been created inadvertently by completely omitting Section 377 of the IPC. This Section addressed unnatural offences, covering offences including sexual violence against same sex couples or individuals. The Section also covered offence of sexual violence against animals by humans.
This article critically evaluates this significant gap by focusing into the legal rights of the vulnerable sections of the society, including LGBTQ+ communities and non-human animals. It explores protections for these groups have been undermined by this change. It highlights the need of gender neutral rape laws and specific separate provision for sexual crimes against animals. Furthermore, it examines how the intersection of criminal law, gender rights, and speciesism reflects the historical neglect of sexual violence against these marginalized groups.
Introduction
The landmark three criminal amendment Acts replacing the Indian Penal Code, 1860 (IPC), The Code of Criminal Procedure, 18973 (CrPC) and the Indian Evidence Act, 1872 (IEA) have become effective from July 1st 2024. The main reason for bringing the three amendments is to modernise the current legal framework and repair the criminal justice system as the old Acts were almost 150 years old. In addition, the new Acts called the Bharatiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarika Suraksha Sanhita, 2023 (BNSS) and the Bharatiya Sakshya Adhiniyam, 2023 (BSA) also seek to bring a shift to address the concern of the people effectively and to do away with the British colonial system1. The effectiveness of the new criminal justice system will ultimately be judged by test of time.
In this article, I will examine the gaps and shortcomings in the new criminal justice system, focusing specifically on the Bhartiya Nyaya Sanhita (BNS) and its relation to the omission of Section 377 from the Indian Penal Code (IPC) which talks about unnatural offences. The vulnerable groups that have been severely affected by the BNS is LGBTQ+ community and non-human animals. Section 377, which was decriminalized by the Constitutional Bench of the Supreme Court of India, but not struck down completely had provided legal protection against sexual crimes involving same-sex individuals and sexual offence against non-human animals. The issues of both the groups intersects with criminal law, gender rights, and speciesism, highlighting how historical neglect extends to sexual violence against queer and trans individuals.
Both queer and animal rights struggles are rooted in colonial-era laws—such as Section 377 of the Indian Penal Code for queer rights and the Prevention of Cruelty to Animals Act of 1960 (PCA), which offers limited animal protections. These intersections reveal how state control often reflects societal views that categorize 'queer' and 'animal' bodies as deviant or primarily utilitarian. 2 The omission creates a significant legal void. Addressing this gap is crucial to ensuring that all forms of violence, are unequivocally condemned and prosecuted, reflecting a commitment to 1 BNS, Speech of Honorable Minister of Home Affairs and Minister of Cooperation Amit Shah in Lok Sabha, October 20, 2023, at 243-244, (Taxmann Publishers 2024). 2 Alok Hisarwala Gupta, The Need for Gender-Neutral Legislation for Sexual Offences in India, NUJS Law Review 13:3 (2020), https://nujslawreview.
org/wp-content/uploads/2020/10/13. 3-Gupta. pdf. protecting all beings in society especially the marginalised groups. I will explore the impact of this legal void in detail. I.
LGBTQ+
The IPC Section 377 read as – 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 Supreme Court of India in its landmark judgment of September 6, 2018, in Navtej Singh Johar v. Union of India3 read down Section 377 of the IPC to the effect decriminalising sexual relations between consenting adults of the same sex. At the same time, the court upheld those provisions in Section 377 that criminalise non-consensual sexual acts performed on victims of the same sex. Now, with the removal of the whole Section in the BNS, without recognising the offence of sexual violence of the members of the same sex being addressed elsewhere, leaves victims of sexual crimes unprotected.
Instead, the approach should have been to create a distinct offense for same-sex violence or introduced a gender neutral rape law to replace an outdated colonialera offense. Already, same-sex sexual abuse/violence is underreported; the repeal of Section
377 will not only encourage the crime but create but also eliminate any deterrent for the
accused, as there is no legal punishment for this offense. The victims would be unable to speak out, which would promote crime by leaving the accused free in the country. There is no doubt that Section 377 has its origins in colonial-era attitudes that regarded intercourse between same-sex partners as unnatural and criminal. There is already limited reporting on violence affecting same-sex couples, and the data that is currently available will likely become even scarcer following this situation. As per a news report, a 26-year-old male was sexually assaulted, beaten, and robbed by café workers in Delhi in August 20234, and a charge under Section 377 was filed together with other sections; in December 2022, a guy was
3 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
4 Express News Service, ‘Man sexually assaulted, thrashed and robbed by bouncers over food bill in Delhi’ The Indian Express (New Delhi, 3 August 2023) accessed 14 March 2024 gang raped by four women in Jalandhar. 5 These incidents represent only a small fraction of the many cases that go unreported. Now, even the few cases that were previously reported will likely go unreported, as the offense is no longer classified as a crime. Therefore, while the objectives of the new criminal acts, including the BNS, indicate a desire to remove colonial-era elements from the laws, the omission of Section 377 results otherwise. The dropping of Section 377 has led to the curtailment and non-recognition of rights for samesex couples, raising significant concerns. This change indirectly reflects a regressive mentality.
The Office of the High Commissioner for Human Rights (OHCHR)6 advises that countries should follow international human rights guidelines, which include reconsidering and potentially ending the enforcement of laws that make consensual same-sex relationships a crime, penalize transgender individuals for their gender expression, or use any other laws to arrest, punish, or discriminate against people because of their sexual orientation or gender identity. India made progress by decriminalizing same-sex conduct between consenting individuals in the Navtej Singh Johar7 case. However, this advancement has been undermined by the BNS, which has created a gap in addressing sexual offenses committed by one same-sex individual against another. There are gender-neutral rape laws in 77 countries, including the United States, the United Kingdom, Canada, and the Philippines8.
Under the BNS, it would have been appropriate to adopt the recommendation of the 172nd Law Commission Report from the year 2000, which suggests treating rape as a gender-neutral offense. Instead, Section 377 was removed, failing to acknowledge and address violence against same-sex couples. 5 Sreemoyee Piu Kundu, ‘Four women rape a man in Jalandhar: Gender-neutral laws are crying need of hour’ Firstpost (Jallandhar, 4 December 2022) accessed 14 March 2024 6 United Nations High Commissioner for Human Rights and reports of the office of the High Commissioner and the Secretary General, ‘Discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity’ (November 2011) accessed
26 Mar 2024
7 Supra 2.
8 Chon, D. S. , & Clifford, J. E. (2021). The Impacts of International Rape Laws Upon Official Rape Rates. International Journal of Offender Therapy and Comparative Criminology, 65(2-3), 244-261. The Supreme Court in NALSA Judgment9 gave transgender persons’ right to decide their selfidentified gender and recognised them as third gender. The court confirmed that transgender people have the same fundamental constitutional rights as everyone else. The complete removal of this section without providing an alternative is contrary to Supreme Court judgments and violates Article 14 and 21 of the Constitution of India. Additionally, the BNS10 addresses the limited definitions of "gender," "man," and "woman" under the IPC11 by expanding the term "gender" to include transgender persons, marking progress for civil rights.
However, BNS retains the traditional definition of "rape" from IPC Section 375, where only a man can be a perpetrator and a woman a victim, lacking genderneutral provisions. This overlooks the need for inclusive laws that acknowledge sexual offences against men and transgender individuals, challenging stereotypes and societal norms that marginalize these groups' experiences. 12 Without legal provisions for gender-neutral reporting, only women can report rape or sexual assault, leaving others without recourse. Discrimination contradicts equality, and true equality fosters individual dignity. In the realm of legal justice, equality is not just an aspiration but a core principle that validates the law. Achieving a fully inclusive legal system under the Indian Constitution remains incomplete without incorporating gender-neutral laws for sexual offences.
13 Gender-neutral laws for sexual offences aim to include male and transgender victims without undermining women's experiences. Currently, societal norms and stereotypes overlook these groups. Every segment of society deserves to live with dignity and equality. Legal loopholes are creating a divide between privileged and marginalized communities, and these gaps need to be addressed. The next section addresses the other aspect of the issue, which involves non-human beings.
9 National Legal Services Authority (NALSA) VS. Union of India, AIR 2014 SC 1863.
10 Bharatiya Nyaya Sanhita, § 2(10) (2023) ("The pronoun 'he' and its derivatives are used of any person, whether male, female or transgender."). 11 Indian Penal Code, §§ 8, 10 (1860) ("The pronoun 'he' and its derivatives are used of any person, whether male or female."; "The word 'man' denotes a male human being of any age; the word 'woman' denotes a female human being of any age."). 12 Ashima Mandala, Gender Neutral Laws for Sexual Offences: A Gap That Has Not Been Bridged, The Leaflet (Aug. 5, 2024), accessed Sep. 15, 2024.
13 Id.
II.
Non-human beings The other group impacted by the removal of Section 377 includes non-human beings, specifically animals, who were covered under one of the offenses in Section 377. The section will examine the irony of how the removal of Section 377 has led to the elimination of another offense, other than those concerning violence against same-sex couples. As Section 377 addressed unnatural offenses, it also encompassed Bestiality. Hence, in the IPC, animal protection activists would seek justice for the animal victim of rape or sexual violence under Section 377. This deletion has raised two concerns, number one the term "bestiality", number two not recognising sexual crimes against animals. Before proceeding, I would first clarify the derogatory connotations associated with the term Bestiality.
The term had inherent problems because it arose inside an anthropocentric Judeo- Christian context. In this context, "bestiality" was related with the belief in non-human creatures possessing brutish, earthy, and barbaric characteristics. It is pertinent to note that 377 is particularly from the era of British in India. It was only as a result of Henry VIII of England breaking with the Roman Catholic Church that legislation in his reign, namely the Buggery Act of 1533, prohibited anal sex committed with humans or beast, the term ‘beast’ referring to animals14. The long-repealed Buggery Act, 1566, of the British colonial-era prescribed death penalty for “unnatural” sexual acts as they are “against the will of the God. ” It also coined the derogatory term "bestiality" for sexual acts with animals, derived from the word "beast. ".
Although it has been around 500 years since the enactment of the Buggery Act, we have yet to move beyond regressive attitudes. Instead, it labelled the human engaged as morally deviant for participating in sexual actions with an animal or beast by making them criminally liable for "bestiality. " Despite its flaws, Section 377's concept of "bestiality" remained the only legal provision under which individuals who committed acts of sexual aggression against animals might face legal consequences.
14 Section 377 Based on Law Passed by Henry VIII in 1533, Times of India (Sept. 8, 2018),
accessed Sep. 15, 2024.
The second major concern is the complete failure to recognize the crime, which is a significant oversight. Examining the issue of sexual offenses against animals in terms of reporting reveals that there are a notable number of cases of animal rape that have been documented. A report on animal cruelty ‘In Their Own Right— Calling for Parity in Law for Animal Victims of Crimes’ by Alok Hisarwala Gupta in collaboration with the Federation of Indian Animal Protection Organisations and All Creatures Great and Small documented 82 cases of animal sexual abuse between 2010 and 2020. The report dispels that animals are routine victims of sexual abuse in India15. With respect to recent cases, in September 2023, a man was caught raping a stray dog in Delhi.
It was discovered that the accused was a repeat perpetrator of the crime, and several complaints had previously been filed against him for targeting dogs in the vicinity and carrying them to his house16; another dog was raped in Patna in March 2023,17 and on March 2023 a man was arrested and jailed for raping a dog in Delhi. 18 In July 2024, a 65-year-old man was discovered to have raped cat, and confined other cats in cages within his home19. In the cases mentioned, except for the most recent one from 202420, charges were filed under Section 377 of the IPC. In the absence of Section 377, the 2024 case was brought under Section
325 of the Bhartiya Nyaya Sanhita (BNS), which addresses mischief involving the killing or
maiming of animals, carrying a potential punishment of up to five years in prison, a fine, or both. This highlights a significant gap in the new law, where no specific offense addresses sexual crimes against animals, leading to the use of an unrelated section. This situation underscores an irony in the new legal framework. 15 The Federation of Indian Animal Protection Organisations and All Creatures Great and Small, In Their Own Right: Calling for Parity in Law for Animal Victims of Crimes (2020) Sep. 15, 2024.
16 Abhishek Anand, On Camera, Delhi Man Caught Raping Stray Dog, India Today (Sept. 15, 2023)
accessed Sep. 15, 2024. 17 Aditya Vaibhav, Man Rapes Fog in Patna, Probe Underway After Video goes Viral, India Today ( March 20, 2023) accessed 14 March 2024. 18 Vani Mehrotra, Drug Addict Rapes Stray Dog in Delhi's Indrapuri Area, Neighbour Films Act, India Today (March 5, 2023) accessed 14 march 2024 19 Mitali Parekh, The Senior Man Had Cages of Kittens to Rape, Mid-Day (July 21, 2024), https://www.midday.com/sunday-mid-day/article/the-senior-man-had-cages-of-kittens-to-rape- 23366033#:~:text=Four%20days%20ago%2C%20a%2065,in%20cages%20in%20his%20home.&text=Range% 20forest%20officers%20found%20a,on%20their%20rounds%20in%20Ichalkaranji. (accessed Aug.1, 2024).
20 Id.
In animals rape of dogs is more prevalent, as they are more approachable. However, the cases are not limited to dogs. There have been instances of rape of wild animals. In April 2022, four men raped, slaughtered, fried, and ate a wild animal monitor lizard at the Sahyadri Tiger Reserve in the western Indian state of Maharashtra21. March 2023, a calf was discovered raped in the backyard of the livestock owner's house in Madhya Pradesh's Rewa District22.These are merely a few of the incidents that have been reported, and the police have taken note of them. There are other sections of maiming, torturing and killing of animals under Section 11 of the Prevention of Cruelty to Animal Act, 1960 and Section 429 of the IPC, which is now Section
325 of BNS and has been dealt above23. However, these sections do not cover sexual abuse on
animals or rape of animals. The IPC barely dealt with the issue of sexual violence against animals, putting it in the catch-all category of “unnatural offences” along with same-sex sexual violence. Now, under BNS the provision is altogether dropped. As per research a person who has engaged in childhood bestiality is more likely to commit adult interpersonal crimes and should be taken as a warning signal by society24. Early identification of risk factors and psychopathology in bestiality cases by psychological analysis is lacking in India. In 1993 article, Dr Frank Ascione stated that “bestiality may be considered cruel even in cases when physical harm to an animal does not occur (this is similar to the case of adult sexual activity with a child where consent is presumed to be impossible25).
” This is 21 PTI, Four Held for 'Raping' Bengal Monitor Lizard in Maharashtra's Sahyadri Tiger Reserve, The new Indian Express ( April 13, 2022) accessed 14 march 2024 22 Press Trust of India, Madhya Pradesh Man Charged For Raping 2-Year-Old Cow: Cops, NDTV ( March 6, 2023) (accessed Mar. 14, 2024). 23 Bhartiya Nyaya Sanhita, § 325 (2023) ("Whoever commits mischief by killing, poisoning, maiming or rendering useless any animal shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. ").
Indian Penal Code, § 429 (1860) ("Whoever commits mischief by killing, poisoning, maiming or rendering useless, any elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value thereof, or any other animal of the value of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. "). Prevention of Cruelty to Animals Act, § 11(1)(a) (1960) ("beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animals to be so treated. "). 24 Sujata Satapathy, Rajanikanta Swain, Vidhi Pandey & Chittaranjan Behara, An Adolescent with Bestiality Behaviour: Psychiatric Morbidity in Patients of Zoophilia and Bestiality: A Descriptive Study, 41 Indian J. Cmty.
Med. 1 (2016), https://www. ncbi. nlm. nih. gov/pmc/articles/PMC4746949/. 25 Animal Sexual Abuse Fact Sheet, Vermont Humane Federation, https://vermonthumane. org/wpcontent/uploads/2016/02/Animal-Sexual-Abuse-Fact-Sheet. pdf. (Accessed Sept. 16, 2024). because animals are unable to be fully informed, communicate consent, or to speak out about their abuse. The absence of any such law to address animal rape opens the door for such crimes to proliferate. India should make strides towards enacting legislation that addresses animal sexual assault and legally recognises animals as victims in such circumstances. By recognising animals as victims in cases of sexual abuse and other forms of cruelty, India can take an important step towards acknowledging their sentient nature , inherent dignity and advocating more respectful and humane treatment of animals within the legal framework. III.
Conclusion
The biggest weakness in elimination of Section 377 is without putting in place alternative mechanisms of redress for sexual crimes against humans and animals. Furthermore, sexual offences between members of the same sex and sexual intercourse between humans and nonhumans cannot be categorised together and must be classified separately. Creating a distinct category for sexual crimes against animals and implementing a gender-neutral rape law would effectively address the issue, ensuring justice for both groups without overlap and modernizing the legal framework to remove existing taboos. Within the context of Section 377, "bestiality" accidentally provided a type of 'unintended' recourse for animal rape victims. It is crucial to note, however, that the legislation did not approach the offence with the primary goal of achieving justice for the animal victim in mind.
We still fail to acknowledge that individuals of the same sex and non-human beings, regardless of sex, are victims of sexual crimes. The BNS has, in fact, completely disregarded the Navtej Singh Johar26 by eliminating 377. Recognizing both groups as victims of crime is crucial not only as a legal right but also for societal reform. This acknowledgment will help ensure that such crimes are not perpetrated openly without fear of legal consequences. This is especially important given the lack of official data on crimes reported under Section 377.
26 Supra 2.