The Delhi High Court has sought a reply from the Central Government on taking homosexual sex without consent out of the purview of crime. The bench of Acting Chief Justice Manmohan and Justice Tushar Gedela said that there is no provision for this in the Indian Judicial Code (BNS). The question arises that if this is not in the BNS, then is it a crime?
The petitioner has demanded that the provision declaring non-consensual homosexual relations as a crime be restored or the law related to rape be made gender neutral.
In fact, from July 1, the Indian Judicial Code has been implemented in place of the IPC. There was Section 377 in the IPC, which made unnatural sexual relations without consent a crime. But it has been completely excluded in BNS.
During the hearing in the High Court, the lawyer appearing on behalf of the Centre said that even if there is any discrepancy, the court cannot interfere and cannot direct the Parliament to implement any provision. He said, this is not a new incarnation of the law, this law itself is new. It remains to be seen how much the courts can interfere.
What happened in the High Court?
During the hearing in Delhi High Court, the petitioner said that if a man commits sexual violence against another man, then there is no legal remedy for it. He said that no FIR can be registered.
On this the court said, ‘If there is no crime, then the court cannot decide what the punishment should be. It depends on them whether they want to make it a crime or not.’
After this, the court has issued a notice to the Centre and sought a reply. The next hearing in this case will now be held on August 28.
How much of a concern is the complete abolition of Section 377?
In August last year, the central government introduced the Indian Judicial Code (BNS) bill in Parliament. After this, it was sent to the parliamentary committee.
The parliamentary committee had also suggested incorporating the provisions of section 377 in the BNS. The committee had said that homosexual relations without consent should be declared a crime. Section 377 made unnatural sexual relations a crime. This section brought unnatural sexual relations with not only men but also women, transgenders and animals under the purview of crime.
But the government did not accept this recommendation. Now since there is no law criminalizing unnatural sex, not only homosexuality but unnatural sexual relations between a man and a woman have also been declared illegal.
In September 2018, the Supreme Court had repealed a part of Section 377. This made consensual homosexual relations outside the scope of crime. However, the Supreme Court had also clarified that sexual relations without consent will still be considered a crime under Section 377.
Experts believe that the complete abolition of section 377 has taken away the legal guarantees given to men and transgenders in cases of sexual harassment.
Under Section 377, there was a provision for a minimum punishment of 10 years, which could be extended to life imprisonment. In such cases, a fine was also imposed if found guilty.
What are the provisions of the new law?
There is no provision like section 377 in BNS, but there are still some provisions which make such acts a crime.
Section 140(4) of the BNS provides for this. According to this, if a person kidnaps a person with the intention of ‘unnatural lust’, he can be sentenced to 10 years in jail. However, this section will be applicable only if there is a case of kidnapping.
Similarly, Section 38 of the BNS decriminalises killing in self-defence. Section 38 states that if a person kills another person in self-defence against ‘unnatural lust’, it is not a crime. However, ‘unnatural lust’ is not defined.
However, such provisions were also there in the IPC. But there are many challenges in implementing these provisions. Because in such a case, kidnapping also has to be proved.
What do the figures say?
There are no statistics available on how many men are raped in India. However, some studies and research show that not only women, but men are also victims of rape.
A study published in the American Science Journal last year estimated that 27% of men and 32% of women have faced sexual harassment at some point in their lives. Citing a study in this journal, it was said that 1 out of every 33 men is either raped or there is an attempt to rape. At the same time, 1 out of every 5 men is a victim of sexual violence.
The US Center for Disease Control (CDC) conducted a study between 2010 and 2012. It revealed that 1 out of every 17 men is forced to have sex.
The report of the National Alliance to End Sexual Violence states that in 14% of the cases of rape reported, the victims are boys or men. 1 in every 6 boys and 1 in every 25 men are victims of sexual assault. Not only this, most of the men who commit sexual violence against men are not homosexuals.
The American Science Journal claimed that 90 to 95 percent of sexual assault cases against men are not registered. This is because men feel that the police will not believe them and they also fear their reputation being tarnished.
Source (PTI) (NDTV) (HINDUSTANTIMES)