On June 14, 2024, the Police registered a case under Section 377 of the Indian Penal Code (IPC) against four people (all men) in Gorakhpur District of the northern Indian Province of Uttar Pradesh for raping a man! Before a proper action by the Police, the victim committed suicide due to social harassment. The incident has triggered a debate on Article 377, in a slightly different context.
As per the British colonial-era Section 377, 10 years of rigorous imprisonment should be awarded to an Indian citizen for indulging in unnatural sexual acts. However, this particular Section of the IPC did not explain the unnatural sex in detail! Since the penetration of the vagina by the penis is considered a normal physical act by the majority, any sexual behaviour outside of this is considered unnatural. Hence, homosexuals and transgenders have been labelled as criminals and harassed for decades in India. That is why gays and bisexuals are forced to hide their sexual identity. The Supreme Court (SC) of India removed consensual sex from the ambit of Section 377 on September 6, 2018.
According to legal experts, the main purpose of Article 377 was to create a discrimination against sexual minority. For the sexual minorities, it is a discriminatory law. However, people who commit rape and other sexual violences against men could be punished under Section 377. Unfortunately, the Indian Police have been more active in using this section to harass sexual minorities, and not to detain those who sexually assault men! Interestingly, Article 377 is the only legal recourse available to men or transsexuals to seek justice against sexual assault and rape.
Meanwhile, the Bharatiya Nyaya Sanhita (BNS), the new criminal code of India, came into effect on July 1, 2024, replacing the Indian Penal Code that was in place since British India. The BNS has a new approach to penalties and punishments, as it includes several key changes. Surprisingly, Section 377 is missing in the BNS! In other words, people cannot be punished for committing sexual violence against men, gay or transgenders on the basis of the BNS. Perhaps, the Government of India believes that men cannot be the victims of rape or sexual violence. Hence, the Government downplays sexual violence against men or transgenders.
A patriarchal society often assumes that men are the species that cannot cry, cannot be weak and cannot be molested! Hence, boys grow up with an idea that they would have to be mighty enough to become men! This sort of idea endangers men, as well as women. India's anti-rape laws assume that the rapist must be a man. It is because men are in a privileged position in a patriarchal society due to the difference of power enjoyed by men and women. However, keeping the identity of a rapist gender-neutral is somewhat dangerous! At the same time, incidents related to rape or sexual assault also take place in gay or transgender relationships. The Government of India should realise the fact that whoever harbours sexual violence needs to be punished. It is desirable that men, women and transgenders should be treated equally by the law in a country in case of sexual violence.
As per Section 63 of the BNS, a person should be awarded a minimum of 10 years of imprisonment for raping a woman. He shall also have to pay monetary penalties. However, there is no clear law in this regard for people belonging to transgender community. The Indian Parliament passed a Transgender Bill in 2019 according to which a person would have to spend just two and a half years in jail for sexually assaulting a transgender person! Unfortunately, there is no law in India to punish the rapist of a man.
The Indian Judiciary often says that if a crime is committed, then the offender(s) must be punished whether there is a law or not. If necessary, the Supreme Court, on its own initiative, can instruct the Government to make laws. One can mention the Vishaka Guidelines, which are a set of guidelines that were established by the Apex Court in 1997 to prevent sexual harassment in the workplace. The guidelines were based on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
The question arises here: What should the Indian Police do if someone rapes a man or a transgender person? There is no law under which the Police can register a case against the offender(s) in such a scenario. It becomes quite important for the Government of India to formulate and implement new laws, keeping in mind the sensitivity of gender identity and sexual orientation of a person! A number of sections of the Indian Penal Code were created during the British colonial rule. The Government may be trying to create a new India by replacing the colonial-era Penal Code with the BNS, but it is yet to protect men and transgenders from sexual abuses!
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