No More #MenToo | New Criminal Laws In India Do Not Recognise Male Rape: Section 377 Deleted From BNS

The Bharatiya Nyaya Sanhita (BNS), that replaced the Indian Penal Code 1860, came into effect from July 1, 2024. While overall there is no change under the matrimonial offenses section, shockingly, the Government of India has deleted the presence of Section 377 IPC completely.

What Was Section 377 in The Indian Penal Code, 1860

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.

Explanation.— Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

What Will This Mean?

Section 377 IPC was earlier a provision criminalising gay sex between consenting adults. However, through Navtej Singh Johar vs Union Of India in September 2018, the Supreme Court of India decriminalised consensual adult sex stating “sexual orientation is natural and people have no control on it.”

Nonetheless, this section was permitted as a legal remedy for men/transgenders who were victims of sexual assault. Infact, in the absence of a marital rape law, this IPC section, was frequently added along with Section 498-A IPC, where wives could accuse their husbands of unnatural sex, and subsequently, an arrest was imminent. We are not going into true or false cases here, but will stick to the omission of this provision with regards to the men.

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How Will This Affect Male Gender?

In such a scenario now, where a man is raped by another man, the victim will have no legal recourse for justice. This means that the Government of India has presumed that no adult man can be raped, and even if he is, he can remain mum and just move on with his life.

Claims of Gender Neutral Laws

The ‘Statement of Objects and Reasons’ of BNS claimed to make offences against women and children ‘Gender Neutral’, however, no changes have been made whatsoever in the BNS. The sections relating to sexual offences continue to be worded exactly like the previous laws, where a “woman” is termed as “victim” and a “man” is labelled as “perpetrator”.

On one hand, Men’s Rights Activists have been fighting to make Rape Laws Gender Neutral, while on the other, the Modi 2.0 (now 3.0) government has completely eliminated even the basic right to justice for a male rape victim.

Some Cases Below:

1. Three arrested over gang-rape of two men in Delhi’s Shakarpur
2. Man Gangraped In Navi Mumbai By Five Men; Undergoes Multiple Surgeries
3. Man sexually assaulted with iron rod in west Delhi, 2 held
4. Man, 23, Dies By Suicide After Sexual Assault By 4 Men, 3 Arrested: Cops
5. New Delhi: Man slapped by date, ‘raped’ by restaurant owner, bouncer after row over ‘inflated’ bill

Best Section To Seek Justice For Male Rape

While there is no exclusive Section under BNS for male rape, such a victim in India may be able to approach Court at the max under Section 114 and 115 of the BNS that deals with “grievous hurt”. Under this section the term of imprisonment can extend up to 7 years.

On the other hand, the transgender community can also seek relief under similar sections of the BNS, along with Section 18 of the Transgender Persons (Protection of Rights) Act, 2019. Under this section the term of imprisonment shall not be less than 6 months and can extend up to 2 years.

There will be no punishment for animal rapists as no section under the BNS has provision for the same.

Speaking with Voice For Men India, Harish Iyer, rape survivor and equal rights activist said:

As someone who has moved the Supreme Court on section 377 with an impleadment application I would like to affirm that we only wanted section 377 to be read down to decriminalise consensual sex between adults in private and not abolish section 377.

This is because section 377 provides protection to sexes other than female and also animals who are victims of sexual assault. The absence of any protection for men and animals from sexual assault in BNS is a gory miscarriage of justice.

I am saying this both as a male survivor of rape and a staunch animal lover. We need to get rid of outdated colonial laws for the progress of humankind. This should be done with sense, sensibility and empathy.

We shouldn’t outlaw the progress we have made in reading into laws of protection for one half of the population.

Adding to the plight that could be faced by male rape survivors, Advocate Shailendra Pratap Singh, Criminal Defense Lawyer said:

With Section 377 gone in the BNS, a man or a transgender person subjected to non-consensual penile penetrative sex is left without any remedy under law sex as it is no longer an offence. The law requires that if there is a legal wrong there must be a remedy.

Not providing a remedy for acts covered under Section 377 is not only illegal but unconstitutional.

The absence of part 377 will allow perpetrators of male rape victims 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 in the BNS.

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Voice For Men India Take:

• Rape is rape. The degree of crime should not matter depending on what is the gender of the victim
• Sadly, that is the message from the current Government of India, that dignity of a man does not matter
• The idea of doing away with archaic British laws has failed completely if India has chosen to march forward in this direction
• Changing names and numbering without much amendments to the old provisions, has been reduced only to lip service of giving new criminal laws to fellow citizens
• As the old saying goes, old wine in a new bottle, but for BJP government, we can say “Naamkaran Sarkar”!

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