Beyond Decriminalization: The Ripple Effects of Section 377

Repeal on India's Criminal Justice System

ABSTRACT

The Union Home Minister of India has proposed three new laws in the Lok Sabha to replace the
Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and the Code of Criminal
Procedure, 1973 (CrPC). By supporting English material while preserving Hindi terminology, the
goal is to revive the nation's criminal justice system. The Bhartiya Nyaya Sanhita Bill, 2023 (BNS)
does not, however, include IPC Section 377, which prohibits "carnal intercourse against the order
of nature with any man, woman, or animal." Consensual homosexual conduct between adults is
no longer considered to be a crime under this law, which the Supreme Court read down in 2018.
Some experts contend that by leaving out this clause, adult male sexual assault victims may
have fewer legal options. The historical significance of Section 377, which Thomas Macaulay
authored in 1838, has been a disputed subject in India.

INTRODUCTION

"Homosexuality is not a mental disorder"-Justice Nariman

The Union Home Minister of India has proposed three new laws in the Lok Sabha to replace the
Indian Penal Code, 1860 (IPC), the Indian Evidence Act, 1872, and the Code of Criminal
Procedure, 1973 (CrPC). These bills illustrate the government's deliberate attempts to express
the terminology in Hindi while retaining the substantive content in English, seemingly as a way to
distance itself from the perceived impact of 'English laws' (although the exact methods of
achieving this intended separation remain somewhat mysterious).

It becomes essential to redirect our attention towards the particular and significant changes
introduced by these Bills. Initially, these alterations may seem to involve a restructuring of
current Sections, a characterization that holds a fair degree of accuracy. Nevertheless, upon a
more thorough review, these revisions notably stumble in the crucial domains.

The Bhartiya Nyaya Sanhita Bill, 2023 (hereinafter referred to as BNS), the proposed replacement
for the IPC to consolidate and amend provisions related to offences and connected matters does
not contain IPC Section 377 - which mentioned "carnal inter-course against the order of nature
with any man, woman or animal". While keeping Section 377, which pertains to 'unnatural
offences,' it can no longer be employed to deem consensual homosexual activity between adults
as a criminal offence. However, some experts have pointed out that the omission of this section
in the BNS could result in limited legal options for adult male victims of sexual assault.

SECTION 377

Section 377 of the IPC states: "Whoever voluntarily has carnal inter-course against the order of
nature with any man, woman or animal, shall be punished with imprisonment for life, or with
impris-onment of either description for a term which may extend to ten years, and shall also be
liable to fine."

Explanation of the section provides that "Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section".
Section 377 of the IPC makes consensual private sexual activities among adults illegal. This
encompasses a broad range of sexual acts between individuals of any gender that deviate from
heterosexual penile-vaginal intercourse, even when consent is present.

Despite originally addressing various sexual acts among heterosexual couples, Section 377,
which has remained unchanged since the inception of the IPC in 1860, is predominantly
employed to discriminate against and harass homosexuals and transsexuals.

HISTORICAL VIEW

In the year 1861, the British Raj implemented section 377, which had its origins dating back to
1838 when Thomas Macaulay drafted it. It was subsequently enforced in 1861. This legislation
was inspired by the Buggery Act of 1533, which defined 'buggery' as an unnatural sexual act
contrary to the laws of nature and religion.

In 2001, an NGO called Naz Foundation filed a petition in the Delhi High Court challenging the
constitutionality of Section 377, which was dismissed. In 2006, the Supreme Court directed the
Delhi HC to hear the case. The High Court in its 2009 verdict held that " Section 377 IPC, insofar it
criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of
the Constitution".

However, in 2013, the verdict was set aside by the supreme court stating that the high court was
"legally unsustainable", and that it had "overlooked that a minuscule fraction of the country's
population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years
less than 200 persons have been prosecuted".

 National Legal Services Authority (NALSA) vs. Union of India (2014) 1

In 2014, the Indian Supreme Court's two-judge panel made a judgement in the NALSA
(National Legal Services Authority) case that recognised "transgender individuals" as
belonging to the "third gender." The court confirmed that transgender people have the
same fundamental constitutional rights as everyone else. The NALSA ruling gave people
the freedom to choose whether they wanted to self-identify as male or female and gave
them the ability to pursue their political, economic, and legal rights in court.

 Navtej Singh Johar vs. Union of India (2018)2

In the 5-judge bench judgement led by then Chief Justice of India Dipak Misra on a
petition initiated by Bharatnatyam dancer Navtej Singh Johar, reached a unanimous
decision to decriminalize consensual sexual relations between adults, regardless of their
gender. This landmark ruling also involved the partial removal of Section 377 from the
Indian Penal Code. The apex court criticized the portions of Section 377 that deemed
consensual unnatural sex as "irrational, indefensible and manifestly arbitrary."The court
emphatically stated, "Section 377 is arbitrary. The LGBT community possesses rights like
others. Majoritarian views and popular morality cannot dictate constitutional rights."

CONSTITUTIONALITY:

According to the Supreme Court ruling in the Suresh Kumar Koushal case, which re-criminalized
"unnatural sex." The provision of the IPC has had a collateral effect in that consensual sex
between LGBT people is criminalized and violates Article 14. Following that, Justice Nariman gave
his decision, saying that the Suresh Kumar Koushal decision was no longer a good law
considering the NALSA and Puttaswamy decisions. He went on to say that homosexuality cannot
be regarded as a mental disorder" and added that "homosexuals have the right to live with
dignity".

After Justice Nariman, Justice Chandrachud gave his decision, noting that Section 377 causes
tragedy and suffering and must be changed. This case involves far more than just decriminalising
a provision. "It is about aspirations to realise constitutional rights and the LGBT community's
equal existence as other citizens," Chandrachud remarked. He also mentioned last year's right-
to-privacy ruling, saying, "To deny the LGBT community their right to sexual orientation is a
denial of their citizenship and a violation of their privacy."

We declare that section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual
acts of adults in private, is a violation of Articles 21, 14, and 15 of the Constitution, said a division
bench of the Delhi High Court (Naz Foundation vs Government of NCT of Delhi and others). This
comfort, however, was fleeting. The Delhi High Court's decision was challenged by the Supreme
Court, which reversed it in December 2013.

HOW THE REPEAL WILL AFFECT THE CRIMINAL JUSTICE SYSTEM

Certain groups, notably male victims of sexual assault, have been warned that if the Bill is
enacted in its current form, they will lose legal protection. While this is also the case under the
IPC, Section 377 of the IPC, which mentions "carnal intercourse against the order of nature with
any man, woman, or animal," does protect non-minor males from rape. This part has been
removed from the planned BNS. Recently, there have been various changes due to the
introduction of "Bhartiya Nyay Sanhita" in 2023. There is no provision in the planned Bharatiya
Nyaya Sanhita, 2023, to protect male victims of sexual assault. 3 The IPC now protects "man,
woman, or animal" from such acts of violence. If the Bharatiya Nyaya Sanhita, 2023 is enacted in
its current form, males may lose their legal protection. Non-minor males were protected from
rape under IPC Section 377. This section has been removed from the proposed Bharatiya Nyaya
Sanhita, 2023 Bill.

Rape is covered under Section 63 of the proposed Bharatiya Nyaya Sanhita, 2023. Certain
4

populations, particularly male victims of sexual assault, may lose legal protection if the Bharatiya
Nyaya Sanhita, 2023 Bill is enacted in its current form, according to critics. This is because the
proposed BNS's definition of "rape" is gendered, implying that crime can only be committed by a
male against a woman.

BOON OR BANE

Certain groups, particularly male victims of sexual assault, have been warned that if the Bill is
passed in its current form, they will lose legal protection. While this is also true under the IPC,
Section 377, which prohibits "carnal intercourse against the order of nature with any man,
woman, or animal," does protect non-minor males from rape. This section has been removed
from the proposed BNS.

The IPC Section 375 supplies seven conceptions of consent that, when broken, constitute the
crime of rape by a male. Rape is addressed under Section 63 of the draught BNS. Unlike the
proposed BNS, which would move the subhead "Of Sexual Offences" under Chapter V of the
Sanhita, which is specifically about "Offences Against Women and Children," Section 375 (and
Section 376, which outlines the sentence for rape) are put under the subhead "Sexual Offences"
in Chapter XVI of the Code, "Of Offences Affecting the Human Body."

The planned BNS, on the other hand, references "unnatural lust" at least twice. The right to
private protection of one's body, according to Section 38, includes the voluntary infliction of
death or severe pain on the attacker if the crime that "occasions the exercise of the right is an
assault to gratify unnatural lust." Kidnapping or abducting a person to submit or put them "in
danger of being subjected to grievous hurt, slavery, or the unnatural lust of any person" is
punishable under Section 138(4).

NEW OUTLOOK

"Retain adultery as a gender-neutral criminal offence".

Gender neutrality is promoted by advocating that Section 497 of the IPC, which was ruled down
by the Supreme Court in 2018, be kept in the proposed law by "making it gender neutral." A
person who has sexual relations with a married woman without her husband's agreement or
connivance is guilty of adultery under Section 497. This was punishable by jail, fine, or both, but
the lady was not.

While overturning the statute, the Supreme Court stated that it was outdated, arbitrary, and
paternalistic, infringing on a woman's autonomy, dignity, and privacy, and reducing the married
lady to being her husband's property. In this regard, the committee believes that the institution
of marriage is sacrosanct in Indian society and that there is a need to protect its integrity. This
clause should be kept in the Sanhita by making it gender-neutral to protect the institution of
marriage.

WAY FORWARD

Same-sex relationships were recognised under Section 377. The absence of part 377 will allow
perpetrators to get away with the crime because they do not come under any specific portion of
the law. It will cause a lot of confusion; the government should create specific offences for each
gender. "With equal punishment for all, which I think for a country like India might work better
where gender inequality is still something to address".