SECTION 377 IPC AND THE OMISSION OF PARALLEL SECTIONS IN BHARTIYA NAYAY SANHITA- LEGAL RAMIFICATIONS AND THE QUEST FOR INCLUSIVE JUSTICE

The Indian Penal Code (IPC) has long served as the cornerstone of criminal law in India, addressing various offenses. However, a new era is on the horizon with the introduction of the BHARTIYA NAYAY SANHITA, 2023, set to be enacted on July 1, 2024. This new legislation, comprising 356 sections, aims to modernize and enhance the legal framework, encompassing many provisions from the IPC.

The BNS Bill proposes significant amendments, particularly in areas such as defamation, offenses against women, and attempted suicide. With a reduced count of 356 sections compared to the IPC's 511, it aims for greater precision and relevance in addressing contemporary societal issues.

Key Objectives of Replacing the Indian Penal Code:

o Integration of Technology: Embracing modern advancements, the BNS emphasizes the utilization of cutting-edge technology in law enforcement and investigation processes.

o Forensic Emphasis: Recognizing the crucial role of forensic science, the new code places heightened importance on forensic evidence gathering and analysis to strengthen criminal investigations.

o Enhanced Safety: Prioritizing individual, community, and national safety, the BNS seeks to bolster protective measures and ensure a safer society for all citizens.

o Upholding Constitutional Values: Aligning with constitutional principles, the BNS aims to safeguard justice, dignity, and the intrinsic worth of every individual within the legal framework.

o Adaptation to Changing Times: In response to societal evolution, the BNS introduces novel offenses and corresponding punishments, such as instituting 'community service' for minor thefts and expanding the definition of gender to include transgender individuals.

o Streamlined Legislation: By eliminating redundant provisions, the BNS strives for a more concise and effective legal system, shedding obsolete elements to enhance clarity and efficiency in criminal law enforcement.

HISTORY OF SECTION 377

Introduced in 1861 by the British colonial rulers, Section 377 of the Indian Penal Code addresses "unnatural offences," criminalizing sexual activities between individuals of the same gender. The section stipulates severe penalties, including life imprisonment or imprisonment for up to ten years, along with fines, for engaging in carnal intercourse against the order of nature with a person or an animal. Notably, it was a cognizable and non-bailable offense, tried in the court of a magistrate of the first class.

However, the enforcement of Section 377 was widely criticized for its infringement upon fundamental rights guaranteed by the Indian Constitution. Articles 14, 15, 19, and 21 ensure equality before the law, non-discrimination, freedom of expression, and protection of personal liberty, respectively. Penalizing consensual sexual acts between same-sex individuals violated these constitutional rights, particularly the right to equality and personal privacy.

Various movements emerged to challenge Section 377, advocating for its repeal on the grounds of human rights and dignity. Notably, the AIDS Bhedbhav Virodhi Andolan published a seminal report highlighting the discriminatory impact of this section and its adverse effects on public health initiatives.

In summary, Section 377 represented an outdated and discriminatory legal provision that undermined constitutional principles and human rights, sparking widespread advocacy for its abolition.

OMISSION OF SECTION 377

It is essential to highlight that the Bharatiya Nyaya Sanhita (BNS) includes a dedicated chapter addressing offences against women and children, offering a comprehensive approach to tackling such crimes. This stands in contrast to the Indian Penal Code (IPC), where such offences are dispersed across various sections throughout the code.

Notably, Section 377 has not been entirely omitted from the IPC but was omitted under The Bharatiya Nyaya Sanhita Bill, 2023. In a landmark ruling in September 2018, a five-judge bench of the Supreme Court unanimously decriminalized consensual sexual relations between adults regardless of their gender, thereby partially striking down Section 377 of the IPC. Moreover, in recent judgments on marriage equality petitions, the Supreme Court emphasized the vulnerable status of sexual minorities and the need for legal, social, and systemic protections.

Previously, under the IPC, consenting adult same-sex couples were subjected to criminalization, a provision overturned by the Supreme Court's directive. However, the absence of Section 377 in the BNS could potentially leave adult male victims of sexual assault with limited legal recourse. This underscores the evolving legal landscape and the ongoing need for comprehensive legal frameworks to protect all individuals, regardless of their sexual orientation or gender identity.

NEED FOR OMISSION OF SECTION 377

The primary objective of omitting Section 377 is to ensure justice and protection for all individuals, rather than punitive measures. Currently, justice eludes male and transgender victims of sexual abuse, highlighting the urgent need for reform. This omission aims to uphold the fundamental rights enshrined in the Indian Constitution, including the right to life under Article 21, and the principles of equality and freedom under Articles 14 and 19. By prioritizing justice over punishment, the legal framework seeks to create a more inclusive and equitable society for all.

REASONS IN FAVOUR OR AGAINST OF SECTION 377

In Favor:

1. Section 377 undermines fundamental rights, particularly the Right to Privacy and Right to Life. It restricts the freedom of consenting adults, as long as their actions do not harm others.

2. The omission of Section 377 grants the LGBTQ community a separate and dignified status within society. Decriminalizing it ensures equal rights for LGBTQ individuals compared to other communities.

3. Homosexuality should not be judged solely on moral or religious grounds. Denying individuals their right to life and personal liberty based on such considerations is unjust and discriminatory.

Against:

1. Section 377 criminalizes consensual sexual acts between adults of all genders and orientations, as well as sexual offenses against animals. Its omission removes these protections.

2. Existing rape laws only cover rape against women, leaving men, transgender individuals, and animals vulnerable to sexual violence. A new provision criminalizing rape against all persons is necessary to ensure comprehensive protection against sexual violence.

CONCLUSION:

The removal of Section 377 by the British, who imposed this provision on India, signifies a significant step toward justice and equality. The Bharatiya Nyaya Sanhita (BNS) aims to establish new laws that promote justice and equality for the LGBTQ community. While Section 377 criminalized non-consensual sex and sexual offenses against animals, its omission requires the introduction of new provisions to address rape against all individuals, regardless of gender or orientation. This omission, supported by the apex court, marks a crucial advancement in delivering justice and equality for all.Section 377 hinders rights, the basic fundamental rights. Section 377 is in violation of Right to Privacy and Right to Life as you can't restrict the freedom of consenting people as far as their freedom is not hurting anyone else. Omission of this provision gave LGBTQ a separate and dignified status in the society. With the decriminalization of section 377, the community got equal rights as compared to the other communities. On the other hand, Homosexuality is considered a concept of morals and religion but on the basis of these, no one can’t be denied from right to life and personal liberty.