As the new Bharatiya Nyaya Sanhita (BNS) 2023 comes into force, Section 377 of the Indian Penal Code (IPC) is now completely removed. Although the Supreme Court read down this section in 2018, allowing consensual gay sex between adults, the complete elimination of the section raises serious concerns. The removal of the section leaves men and trans persons with no legal recourse against sexual assault.
For students and youngsters, who are at the forefront of advocating for equality and justice, this change carries significant implications.
The following column by Professor Niladri R Chatterjee offers a thought-provoking and witty exploration of the implications of this legal shift, the troubling ambiguities that remain and its impact on the youth striving for a more inclusive future:
Section 377. 1861-2024
It should have been a cause for celebration. The dreaded Section 377 has entirely disappeared from Indian law. The joyous tombstone might read: “Section 377. 1861-2024” and that should have been that. However, what has taken its place serves as a dampener to any such celebration. The Bharatiya Nyay Samhita (BNS) became the law of the land on July 1, 2024, and instead of this event raising cheers, has only raised fears.
Section 377, put into the Indian Penal Code by the blithely racist Lord Macaulay, was essentially a piece of British law planted in the alien soil of India. That law can be traced back to 1533, when the Buggery Act was introduced under the reign of the famously and extremely heterosexual King Henry VIII. That law criminalising sex between men was primarily the handiwork of Henry’s minister Thomas Cromwell. The punishment for homosexual sex, which meant only anal sex, was death. His famously virgin daughter Elizabeth I doubled down on this piece of legislation, and homosexuality remained a crime punishable by death till 1861.
That year onwards, the death penalty was replaced by life imprisonment in England. In 1885, the punishment was shortened to two years’ imprisonment, but all possible forms of sexual contact between men now came under the purview of the new Criminal Law Amendment Act.
The British morality and the Indian history
Homosexual sex between consenting male adults in private was decriminalised in England in 1967. The British had left India twenty years ago. But homosexual sex between men in India continued to be criminalised unquestioningly. One hundred and ninety years of British rule had convinced most Indians that British sexual morality was perfectly in alignment with Indian sexual morality and no change was necessary.
A lone voice in the wilderness, pleading for the decriminalisation of male homosexual sex, was that of the Math genius Shakuntala Devi, whose The World of Homosexuals was published in 1976.
It wasn’t until July 2, 2009, that the offensive section of the IPC grabbed the headlines again because it had been rendered partially toothless by the Delhi High Court, which decriminalised consensual sex in private between adult men. Indian homosexual men were not criminals before 1861. Now, they were again no longer criminals.
On December 11, 2013, they were criminalised again. This time not by Lord Macaulay but by those who evidently agreed with his view of sexual morality.
On September 9, 2018, we saw the final reading down of the Section (I say so cautiously because homosexual sex between consenting adult men can be re-criminalised by the Supreme Court, just as the Roe vs Wade judgement was overturned by the US Supreme Court and gay marriage may also be declared null and void under a widely forecast second Trump Presidency!).
What should be mentioned here is that H Montgomery Hyde states in The Other Love (1970), “Lesbian behaviour has never been criminal in England, although an unsuccessful attempt was made in Parliament to make it so in 1921; nor has lesbianism ever excited the popular revulsion [in England] and in America that male homosexuality has.”
Before moving on to the BNS, it may be remembered that before the Delhi gang rape case, Section 377 was applicable to homosexual as well as heterosexual sex which was not peno-vaginal. After the Delhi gang rape, heterosexual sex was exempted from Section 377, essentially to “protect the sanctity of marriage”.
So, the husband could now sodomise his wife and he would not be liable for prosecution! The applicability of the section was now restricted to cases of forced sex, or sex with a minor, or in public, where both the parties are male.
Bharatiya Nyaya Sanhita and the “unnatural lust”
There is nothing similar to this Section in the BNS.
“Carnal intercourse against the order of nature” as mentioned in the erstwhile Section 377 has now been replaced by the curious phrase “unnatural lust”.
It occurs only twice in the document: Once in Section 38 (d) – in the context of “The right to the private defence of the body … [through] the voluntary causing of death or any other harm to the assailant ” – and once in Section 140 (4) in the context of kidnapping/ abduction. Section 38 (d) states, “an assault with the intention of gratifying unnatural lust”, and Section 140 (4) states, “… Whoever kidnaps or abducts any person in order that such person … be put in danger of being subjected to … the unnatural lust of any person.”
So, it is legal to kill or harm a person who has the intention of committing an act of “unnatural lust” on another.
What, pray, is “unnatural lust”? Is it like “unnatural hunger”, perhaps? You are supposed to be hungry at 9.30 pm. Why are you hungry at 7.30 pm? It’s unnatural! What is natural lust? The lust that a twenty-five-year-old husband feels for his twenty-year-old wife?
This phrase is as baffling as the phrase “against the order of nature.”
If anything, this phrase is even more vague and therefore, can be deployed to criminalise any kind of sex that is not heterosexual, irrespective of whether it is gay or lesbian, consensual or not, in private or in public.
So, the suspicion that sex between two consenting men or two consenting women or between a cis man and a trans man or between a cis woman and a trans woman is now liable to be drawn into the category of “unnatural lust” may not be unfounded.
There is nothing in the BNS that defines rape as an act that may be perpetrated on a man by a woman or on a man by a man.
Bestiality, similarly, finds no mention in the document. However, acts of bestiality may be prosecuted under Sections 38 and 140, depending on how “unnatural lust” is construed.
Ambiguity, a trap
I am not a law student, and my understanding of these two sections may well be flawed and liable to be corrected by those who are trained in the legal field.
I am however trained in the study of literature, and I was given to understand that, unlike in law or commerce or engineering or even history or political science, literature draws its power from ambiguity, from lack of precision, from – counterintuitively – empowering the reader to make their own meaning.
Vagueness in law has catastrophic consequences. This is more so the case when terms that carry subjective, emotional meaning rather than objective, empirical meaning, are written into the legislation.
“Unnatural lust” may be expected from the lips of a prudish, conservative, homophobic person, but should have no place in a document that purports to be objective, ethical, and fair.
A great deal of serious, painstaking debate is urgently necessary so that a large part of our lived experience does not become criminalised all over again simply because the crime remains deliberately undefined.
It is Kafkaesque. It should have no place in an ostensibly democratic country like India.
(The column is written by Professor Niladri R Chatterjee, Department of English, University of Kalyani, Kolkata. Views expressed are his own.)
