Karnataka MLC Suraj Revanna, brother of former Janata Dal (Secular) MP Prajwal Revanna, has been accused of sexually assaulting two men. While the first complaint was filed on June 22 by a JD(S) party worker, the second one was registered on June 26, by the Holenarasipura Rural Police Station. Both complaints mention Section 377 (unnatural offences) among others, of the Indian Penal Code (IPC). While survivors of the alleged assault by Suraj can seek remedy under the law, after July 1, men and several LGBTQIA+ individuals will find themselves with no legal protection from sexual assault.

Section 377 of the IPC, though problematic, protects against sexual assault for men, LGBTQIA+ individuals, and animals, and this provision has been omitted from the new Bharatiya Nyaya Sanhita (BNS) which will replace the IPC from July. This creates a legal vacuum, raising questions about the rights of victims, and how future cases will be handled.

Senior Supreme Court lawyer and legal activist Vrinda Grover told TNM that the absence of this crime is yet another indication of the hasty and arbitrary manner in which these laws have been drafted and passed. 

“There is sexual violence documented against both trans men and adult men by adult men, including by men in uniform. While the POCSO Act provides a legal remedy for sexual assault of boys under 18 years, the absence of an offence akin to section 377 IPC creates an alarming gap in the law. The absence of this provision shows how the government has not taken on board the suggestions and concerns voiced by experts and affected groups,” she said. 

In 2018, the Supreme Court decriminalised consensual same-sex relationships and read down Section 377, but retained the provision in the law to protect against sexual assault of men, several LGBTQIA+ individuals, and animals. 

The BNS is not retrospective in nature, which means that the offences committed before July 1 will be tried under the IPC. The important aspect here is the date of commission of the offence, even if it is reported later. In effect, while trials will go on for sexual offences against men, aggrieved queer individuals, and animals that happened before July 1, the crimes committed after, cannot be booked under this section.

Legal mess, lack of remedy

Elaborating on the legal mess the BNS will cause, lawyer and activist Aravind Narrain told TNM that Suraj Revanna’s case is a significant example of how the legal vacuum will play out. “If such a complaint was to be filed after the new law comes into effect, let’s say another man accuses sexual assault by Suraj himself, the act taking place after July 1, the accused cannot be prosecuted. The police can say there is no law and simply dismiss the survivor,” he said.

The problem, as Aravind and other lawyers note, is the gap in protection. While male and LGBTQIA+ survivors can seek remedy under provisions like assault or grievous hurt mentioned in the BNS, this can never address the essence of their experience of sexual violence. 

“One provision cannot substitute for the lack of another, and in the case of sexual assault, what it does to the survivor is entirely different from grievous hurt or assault. Further, grievous hurt would require proof of the injury. Sometimes, sexual assault victims may not present such injuries. This means that they will not be able to seek remedy under grievous hurt as well,” Aravind explained.

“The police only file an FIR if they think the complaint by a person is reasonable, and what is reasonable could be a political decision or even a moral one, which means that men and LGBTQIA+ persons who approach the police once the new law is in place, may be sent away at the very onset,” he further added.

The non-retrospective nature of the BNS would also mean that public prosecutors, lawyers, and judges have to be conversant with both the old law (IPC) and the new one since trials for cases registered under the IPC would continue. 

The remedy, as activists have been saying, is to ensure that the legal gap concerning sexual offences on genders other than women is filled in the new criminal law. However, that does not mean that Section 377 itself must be retained as such.

Gender-neutral rape laws

Though the Supreme Court retained Section 377, Aravind pointed out that the language of the Section is problematic and it must go. “It says ‘carnal intercourse against the order of nature’, which stigmatises any alternative expression of sexuality as unnatural, carnal, or unusual. This has mental health implications for gender minorities and this must go. But that must be accompanied by filling the protection gap, which the BNS fails to do,” he said.

The solution, Aravind noted, is to make the existing rape laws gender-neutral. As of now, rape is defined as an offence against a woman. Replacing ‘woman’ with ‘person’ would ensure that the legal protection extends to all genders, filling the gap created by the omission of Section 377. “Ideally, this is what a forward-looking criminal regime should aim to do. It must not only empower all people to seek remedy against sexual violence but also give them dignity in the process in the use of language,” he said.

Further, another way to address the problem would be to file state amendments. “We can petition to ensure protection against sexual offences for men and LGBTQIA+ individuals in respective states. But this is quite unfortunate if you think of it, because the moment a new law comes into place, we are forced to petition for changes,” Aravind added.