The proposed Bharatiya Nyaya Sanhita (BNS) 2023, intended to replace the Indian Penal Code (IPC), has recently garnered attention due to the absence of IPC Section 377, which was famously read down by the Supreme Court in 2018. This change has raised concerns and debates regarding the legal protection of male victims of sexual assault and the implications of the proposed bill.
Background
The Indian Penal Code, formulated under the leadership of Thomas Babington Macaulay in 1834, came into effect in January 1860. Section 377 of the IPC criminalized consensual sexual acts “against the order of nature” between individuals, including same-sex relationships. The LGBTQ community and advocates long argued that this section was discriminatory, fostering harassment and intimidation.
Supreme Court’s Landmark Verdict: Navtej Singh Johar v. Union of India (2018)
In a historic verdict in September 2018, a five-judge bench of the Supreme Court unanimously decriminalized consensual sexual relationships between adults, regardless of gender, and partially struck down Section 377. The court labeled portions of Section 377 as “irrational, indefensible, and manifestly arbitrary,” acknowledging its role in fostering discrimination and harassment against LGBTQ individuals. The court’s ruling focused on consenting acts between adults.
Bharatiya Nyaya Sanhita (BNS) Bill, 2023 & Concerns
The proposed Bharatiya Nyaya Sanhita (BNS) Bill, 2023 aims to replace the IPC and has prompted discussions due to the exclusion of IPC Section 377. While the IPC has 511 sections, the BNS Bill contains 356 provisions. Notably, the BNS Bill no longer includes the provision that offered protection to non-minor males from rape, thereby potentially impacting male victims of sexual assault.
Changes in the Definition of Rape and Gendered Interpretation
In the IPC, Section 375 defines rape and enumerates seven principles of consent that, if violated, constitute the offense of rape by a man. However, in the proposed BNS Bill, the concept of rape is redefined and falls under Section 63. Critics argue that this gendered redefinition could lead to the loss of legal protection for male victims of sexual assault. The proposed BNS’s definition of rape is restricted to acts committed by a man against a woman.
Consequences and Concerns
The absence of a provision to safeguard male victims of sexual assault under the proposed BNS has raised alarms. In India’s current legal framework, the IPC extends protection to “man, woman, or animal” against such acts of violence. If the BNS is enacted in its current form, there is apprehension that male victims could lose the legal shield extended to them.
UPSC Mains Questions
- What are the key differences between the Indian Penal Code (IPC) and the proposed Bharatiya Nyaya Sanhita (BNS) Bill, specifically concerning the provisions related to sexual assault?
- How does the gendered definition of rape in the BNS Bill potentially impact male victims of sexual assault?
- Considering the concerns raised, what potential revisions or amendments could be considered to ensure equitable legal protection for all victims of sexual assault under the Bharatiya Nyaya Sanhita, 2023?