Voiceless At Risk - Absence Of § 377, IPC In BNS, 2023
Author: LawSphereX
Category: Criminal Law
Published:
Updated:
VOICELESS AT RISK: ABSENCE OF § 377, IPC IN BNS, 2023
Nutan Kharat, B.B.A. LL.B. (Hons), University of Mumbai, Thane Sub-Campus
ABSTRACT
Animals are a symbol of innocence; breathing in a world that too often forgets how to be kind. “At present, there is no provision in the Bharatiya Nyaya Sanhita, 2023, that provides animals the same protection,” the People for the Ethical Treatment of Animals (PETA) said in a letter written to the Home Affairs Committee on September 14, 2023. The presented paper poses three questions: Is there any legal remedy for bestiality in India postimplementation of BNS? Does this omission create a legal lacuna, and if so, does it result in a violation of animal rights? A nation that recognizes animals as legal persons might now be facing the day where there is no legal remedy for sexual abuses against them. A regressive move in criminal laws. This violates a plethora of animal rights including Article 21. The State has a parens patriae duty to protect animals from this violation.
Repeat crimes among animal abusers are the rule rather than the exception. Bestiality must be recognized as a heinous offense in this day and age with severe penalties. While remedial legislation exists, it is yet to be enacted. Keywords: Bestiality, Animal Rights, Section 377 IPC, Bharatiya Nyaya Sanhita 2023.
1. INTRODUCTION
The enactment of the Bharatiya Nyaya Sanhita (BNS), 2023 marked a cardinal shift in India’s criminal justice laws by repealing the Indian Penal Code (IPC), 1860. This included Section 377, a controversial provision that criminalized "unnatural" sexual acts which included bestiality. § 377 was partially decriminalized in 2018 to exclude consensual homosexual acts as a liberal step toward freedom for the homosexual community in India. In the other half, it retained the provision that criminalized non-consensual and abusive acts involving animals.1 With the complete exclusion of § 377 in BNS 2023, bestiality is no longer an offense. This raises concerns about animal welfare and public morality.
2. RESEARCH OBJECTIVE
The objective of this research is to review animal protection laws in the specific domain of sexual abuses against animals i.e. bestiality, which has ceased to be an offense post the implementation of the Bharatiya Nyaya Sanhita on 1st July 2024.
3. RESEARCH QUESTION
1) Is there any legal remedy for bestiality in India?
2) If there is no legal remedy for bestiality, does this create a legal lacuna in Indian
criminal laws?
3) If there exists a legal lacuna, does this lead to a violation of animal rights?
4. COMPREHENSIVE ANALYSIS
4.1. HISTORY OF SECTION 377 AND ANIMAL PROTECTION LAWS IN INDIA
Historically, traditional Indian religions thought highly of animals and even considered them sacred. “Animals are sacred because people identify with them,” says Nanditha Krishna.2 Colonization brought the first animal-related legislation under the Indian Penal Code, 1860. The IPC criminalized “Unnatural Offenses” including same-sex relationships and bestiality.3 It was unfortunately misused to oppress sexual minorities rather than to provide animal
1 Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
2 Scared Animals of India 1 (ISBN-10: 9780143423201).
3 Indian Penal Code, § 377 (1860).
protection.4 Post-colonization, the Indian parliament passed its first legislation related to animals - The Prevention of Cruelty to Animals Act 1960; followed by many more, but IPC
1860 was retained and amended as required. Navtej Singh Johar v. Union of India5 in 2018 lent
a hand to the LGBTQ+ community by partially repealing § 377 given its unconstitutionality. The other partial half was left as a remedial provision for bestiality, until 2024. It termed sexual offenses against animals to be “against the order of nature” since it cannot result in reproduction.6
4.2. WHY SHOULD BESTIALITY BE A HENIOUS OFFENSE?
The act sounds monstrous to any reasonable man. But under objectivity, it needs to be an offense because it is a social evil that yields fear and chaos in rem. Moreover, bestiality is heinous, as reaching the mental state of sexually abusing an animal shows high degrees of mental perversion and a deficit of basic moral principles. The deciding pillar of whether any sexual act is unlawful is consent. Consent is defined as u/S
63 of BNS, 2023 –
“Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.”7 It also includes, u/S 63.- “Rape.—A man is said to commit “rape” if he—.... under the circumstances falling under any of the following... (vi) with or without her consent, when she is under eighteen years of age...”8 4 Section 377: A Battle of LGBT Community against the Stereotypical Societal Norms, 18 Supremo Amicus 12 (2020) (ISSN: 2456-9704).
5 Supra 1
6 Lakhi Sahu (Kanu) vs Emperor, AIR 1932 Cal 487
7 Bharatiya Nyaya Sanhita, § 63 (2023)
8 Ibid 7
By literal interpretation of these provisions, the essential ingredients of consent are;
1. Unambiguous communication of consent, and
2. Competence of consent.
Animals lack both. Animal rights are a matter of res publica. The relationship between abusing animals and abusing humans runs deep.9 Repeat crimes among animal abusers are the rule rather than the exception. A person who has committed bestiality as a child is most likely to commit interpersonal adult crimes.10 Sexual contact with animals poses risks of cross-species disease transmission. Incidents involving livestock can lead to outbreaks of infections which may disadvantage rural economies dependent on animal husbandry. Consequences to varieties of systems are a plethora, amidst which the victim life forms must not be forgotten.
4.3 ANIMAL RIGHTS & PRECEDENTS
"The greatness of a nation and its moral progress can be judged by the way its animals are treated." - Mahatma Gandhi.11 Legal order in India has historically marginalized animal rights. Animals have been treated as property rather than sentient beings.12 Progressive interpretations by Hon’ble courts, however, can be seen over time. Animals have been considered as legal persons since 2009.13 In Animal Welfare Board of India v. A. Nagaraja, the hon’ble SC extended the ‘Right to Life and Personal Liberty’ under Article
21 of the Indian Constitution to animals. Jus naturale est quod natura omnia animalia docuit
i.e. “the right that nature gave to all living things” presumes that the inherent dignity of animals and their natural rights should be protected by law. Animals received recognition for their intrinsic right to a life of dignity, and the five freedoms given to animals by the World Health Organization for Animal Health:
1) Freedom from hunger, malnutrition and thirst,
2) Freedom from fear and distress,
9 J. Am. Acad. Psychiatry & L. 30, 257–65 (2002).
10 Indian Journal of Community Medicine. 41(1), 23-26 (2016).
11 M.K. Gandhi, Mahatma Gandhi: The Last Phase (Navajivan 1958).
12 Managing Green (1st ed. 2023) (ISBN: 978-81-965320-1-7).
13 Karnail Singh and Ors v. State of Haryana, (2009) 16 SCC 798.
3) Freedom from heat stress or physical discomfort,
4) Freedom from pain, injury and disease,
5) Freedom to express normal patterns of behaviour.14
This imposes a duty on the State as a parens patriae to protect the animals from any sexual exploitation and rape. But without a specific statute criminalizing bestiality, it cannot be enforced. The 42nd Amendment of the Constitution of India added; “Article 48A. Protection and improvement of environment and safeguarding of forests and wildlife. The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. ” , “Article 51A. Fundamental duties - It shall be the duty of every citizen of India... to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for living creatures. ” Article 51 A (g) of the Indian Constitution is referred to as the Magna Carta of animal rights. These mandate the State and citizens to protect and improve the natural environment including animals.
The case where traditional practice of jallikattu (bull-taming sport) was banned to reiterate these principles has put animal rights even above immemorial cultural practices i. e. customs. 15 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (2005)16 had SC observe that animal protection is not only a matter of compassion but also public morals and cultural values given under Article 48A of the Indian Constitution.
4.4 LEGAL LACUNA VIS-À-VIS BESTIALITY
Since the removal and thereby decriminalization of § 377, LGBTQ+ rights have gained recognition. Yet the unintended and overlooked consequence has been the removal of legal remedy for bestiality. The absence of explicit anti-bestiality laws in the new BNS 2023 reflects an omission in India’s criminal statutes. § 323 of BNS, 2023 states offences of mischief by killing or maiming animals. This provision as well, does not provide any sexual acts with
14 Guiding principles, World Organisation for Animal Health (1965).
15 Animal Welfare Bd. of India v. A. Nagaraja & Ors., (2014) 7 SCC 547.
16 State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534
animals to be an offense. Laws on obscenity such as § 292 and § 293 of BNS, do not extend to criminalizing the creation, distribution, or possession of bestiality-related content. The Prevention of Cruelty to Animals Act, 1960 (PCA) is currently India’s primary animal protection legislation. § 11 and § 12 of the PCA prohibit acts of cruelty and neglect toward animals. Limited protection is served which focuses mainly on physical cruelty17 rather than any sexual abuse. This creates an absolute legal lacuna in animal rights. No adequate legal statute exists to prosecute perpetrators committing acts of sexual abuse against animals. Omission, under interpretation of statues, by legislature, in such manner - does not allow for inclusion by extension of the provision’s scope beyond its meaning i. e. both letter of law and spirit of law, and ejusdem generis.
Due to the principle of nullum crimen sine lege i. e. “no crime without a law”, this has tied the hands of the judiciary.
4.5 ANIMAL ABUSE CRISIS & GLOBAL STANCE
The Federation of Indian Animal Protection Organisations (FIAPO) and All Creatures Great and Small (ACGS) released a report in 2021, revealing that in the previous ten years, more than 4,90,000 animals were known victims of a range of crimes, including sexual violence. These included animals of a huge variety of species, such as cows, dogs and wild animals. The Voice of Stray Dogs (VOSD) report had calculated that sexual abuse against animals was committed at a similar rate to human rape cases. 18 The report brought realization about underreporting of these crimes. Around the globe, jurisdictions of the United Kingdom of Great Britain and Northern Ireland, the United States of America, Dominion of Canada, and the Commonwealth of Australia have enacted distinct laws against bestiality.
The US has the Preventing Animal Cruelty and Torture Act19, and certain states have explicitly 17Prevention of Cruelty to Animals Act, §§ 11, 12 (1960). 18 Sexual Abuse of Street Dogs in India: An Analysis of the Phenomenon, the Law, 1st Hand Accounts, Press Reporting, VOSD (Mar. 15, 2025, 13:40 PM), https://vosd. in/sexual-abuse-of-street-dogs-in-india-an-analysis-ofthe-phenomenon-the-law-1st-hand-accounts-press-reporting/.
19 18 U.S.C. § 48 (United States).
criminalized bestiality20. The UK’s Sexual Offences Act 2003 criminalizes sexual acts with animals, stating u/S 69 “A person guilty of an offence under this Section is liable on conviction on indictment to imprisonment.”, setting detriment to such actions. Canada has bestiality criminalized under its Criminal Code u/S 160 (1) “Every person who commits bestiality is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or is guilty of an offence punishable on summary conviction.”21 And Australia’s Criminal Code states u/S 211, “Bestiality: (1) Any person who engages in penile intercourse with an animal is guilty of a crime and is liable to imprisonment for 7 years.”22
4.6 WAY FORWARD
The matters of animal rights are allocated under the 7th Schedule of Indian Constitution in the State and Concurrent List. No state has yet taken initiative vis- à -vis the legal lacuna. Yet there lies hope in The Prevention of Cruelty to Animals (Amendment) Bill of 2022. This bill is yet to be tabled in Parliament. The proposed amendment prescribes “fines up to Rs 75,000 and imprisonment extending to five years”, which remedies the outdated penalties of the current Act of 1960. The imperative feature to focus on is that the bill incorporates new cognizable offenses. Distinct acts constituting cruelty and sexual offenses against animals are included. It states insertion of new sections as: “Subsection (j) of section 2: “Bestiality” means any kind of sexual activity or intercourse between human being and animal.”,23
20 Cal. Penal Code § 286.5 (California).
21 Criminal Code, R.S.C., 1985, c. C-46 (Canada).
22 Criminal Code Act 1899 (Australia).
23 The Prevention of Cruelty to Animals (Amendment) Bill, 2022. (India)
which serves as the interpretational clause for defining the scope of the act of bestiality and, “Section 11(A): Gruesome Cruelty: Whoever, whether an individual or group of individuals or an organization- (i) has carnal intercourse against the order of nature with any animal... ... Shall be punishable with a minimum fine of fifty thousand rupees which may be extended up to seventy-five thousand rupees or the cost of the animal as may be decided by judicial magistrate in consultation with the jurisdictional veterinarians whichever is more or with the imprisonment of one year which may extend up to three years or with both. ”,24 which serves as the provision penalizing the act, providing both fine and imprisonment. The draft provision leaves space for the judiciary to interpret that statute proportionate to its severity practicing lex talionis i. e. the law of retaliation.
It also allows for intervention of expert opinion as and when the Hon’ble court may require.
5. SUGGESTED REFORMS
Bestiality remains a taboo subject in India. It has limited public discourse and awareness. Without an explicit legal remedy, all educational efforts are stymied. It remains largely unaddressed in public policy. Bridging this lacuna will call for nothing less than a multifaceted approach. The need goes beyond legal reform and extends to public awareness campaigns, civil society organizations and more. • There is a requirement to enact a dedicated anti-bestiality statute that criminalizes sexual abuse against animals explicitly, i.e. implementation of the new proposed draft provisions of The Prevention of Cruelty to Animals (Amendment) Bill of 2022. • Alternatively, proposed legislation (in the scenario that The Prevention of Cruelty to Animals (Amendment) Bill of 2022 is tabled):
24 Ibid 23
“Section __: Prohibition of Sexual Acts with Animals.
1) For the purpose of this Section; "Animal" refers to any non-human creature,
whether domesticated or wild, including but not limited to mammals, birds, reptiles, amphibians, and fish.
2) Any person who engages in, or attempts to engage in, any form of sexual act with
an animal shall be deemed to have committed an offense of bestiality.
3) The offender shall be punished with imprisonment for a term of _____, and may
also be liable to a fine of _____, (or both).
4) If the act results in injury or death to the animal, the imprisonment term may
extend to a term of _____, along with a mandatory fine of ______.” It is fundamental to draft the penalties (imprisonment or fine or both) in proportion to;
1. The severity of the act, and
2. Concept of living law i.e. in accordance to the day and age of society.
The establishment of specialized animal welfare courts could improve case management. • Public awareness initiatives for sensitizing citizens and law enforcement officers about sexual abuse of animals.
6. CONCLUSION
1) Is there any legal remedy for bestiality in India?
No. Unlike its predecessor, which expressly criminalized "carnal intercourse against the order of nature," the BNS, 2023 lacks any analogous provision criminalizing sexual offenses against animals. The absence of § 377 IPC in the newly enacted BNS, 2023 leaves no legal remedy for bestiality. No other animal welfare Acts entail any provisions to decriminalize the same.
2) If there is no legal remedy for bestiality, does this create a legal lacuna in Indian
criminal laws? Yes. Without the act being an offense, there is an undeniable gap in India’s criminal justice system. The omission defies the fundamental objective of criminal law - safeguard from exploitation.
3) If there exists a legal lacuna, does this lead to a violation of animal rights?
Yes. Beyond animals' inherent rights, this omission directly contradicts constitutional provisions and judgments extending the right to life and personal liberty to animals. The lacuna has made animal rights illusory.