Home Minister Presents Bharatiya Nyaya Sanhita to Replace IPC

Recently, the Home Minister introduced the Bharatiya Nyaya Sanhita (BNS) in the Lok Sabha, a bill intended to replace the Indian Penal Code (IPC).

Key Points

Reform Bill's Scope and Replacements: The Bharatiya Nyaya Sanhita (BNS) aims to replace the Indian Penal Code (IPC) and introduces several reforms. Among the proposed changes, the BNS also eliminates sections related to unnatural sex and adultery, which were invalidated by the Supreme Court in 2018.
Adultery Section Repeal: The proposed Bharatiya Nyaya Sanhita eliminates the contentious Section 497 of the IPC, which previously criminalized adultery.
Unnatural Sex Provision Removal: The BNS also removes the section related to unnatural sex, which is governed by Section 377 of the Indian Penal Code.
Bharatiya Nyaya Sanhita's Focus: This comprehensive overhaul seeks to address outdated provisions while aligning with contemporary legal and societal perspectives.

Section 377 of the Indian Penal Code (IPC) defines the criminal offense of engaging in voluntary carnal intercourse against the order of nature with a man, woman, or animal.
The section prescribes penalties for this act, including life imprisonment or imprisonment for up to ten years, along with the imposition of a fine.

Legal Explanation of Section 377

According to the legal explanation provided, the act of penetration is sufficient to fulfill the requirement of carnal intercourse for the offense specified in this section.

Historical Context of Section 377 of IPC

The origins of this law trace back to the historical prohibition of sodomy or buggery, which was considered a crime during medieval times.
In 1533, during the reign of Henry VIII, the Parliament of England passed a law punishing the vice of buggery committed with humans or animals.
In 1861, during British rule in India, a similar provision, Section 377, was introduced under the Indian Penal Code.

Supreme Court Rulings on Article 377

For a long time, the outdated law deemed consensual same-sex intercourse as an "unnatural offense" that went against the natural order.
Members of the LGBTQ community had challenged this law through petitions, seeking legal protection against harassment and violence.
In 2009, a High Court bench declared that Section 377 was unconstitutional, violating several articles of the Constitution.
However, in 2013, the Supreme Court overturned this decision, re-criminalizing consensual same-sex intercourse by terming the previous judgment as legally unsustainable.
The turning point came in 2018 when the Supreme Court ruled Section 377 unconstitutional, deeming it discriminatory against the LGBTQ community based on their sexual orientation.
The apex court decriminalized same-sex intercourse, emphasizing its significance as a matter of personal privacy.

Impact on Male Victims of Sexual Assault: The current form of the proposed Bharatiya Nyaya Sanhita (BNS) has raised concerns about potential loss of legal protection for groups, including male victims of sexual assault.
This apprehension stems from the gendered nature of the proposed offence of "rape," which is defined as an act committed by a man against a woman.
The existing protection accorded to non-minor males under IPC Section 377 might be omitted in the new BNS.
Grey Areas from 'Navtej Johar' Verdict: The 2018 'Navtej Johar' Supreme Court verdict created ambiguity, leading to a need for guidelines to handle scenarios where a gay man withdrew consent and filed a complaint against their partner.
Notably, India's current laws on sexual assault don't recognize men as victims of rape. The proposed BNS introduces the term "unnatural lust" in two instances, but it doesn't provide a clear definition for this term.
Concerns for Male Victims: The shift of the definition of rape to being gendered in the BNS raises concerns about male victims' protection under the law.
This change might inadvertently exclude non-minor males from the legal framework that previously existed in IPC Section 377, which granted protection against certain forms of sexual assault.