The British imperialist government introduced Section 377 of the Indian Penal Code in 1861. This made sexual activities that went ‘against the order of nature’ illegal in the eyes of the law. Over time, the interpretation of the kinds of sexual activities that went ‘against the order of nature’ included anything that fell outside of the cis-heteronormative.
During the 163 years since, India has witnessed vast changes. Especially since the Republic’s independence, there have been many movements pushing the country’s institutions to consider the cause of queer rights. This has become more pronounced in the past decade:
In 2014, the NALSA judgement by the Indian Supreme Court allowed people to self-identify as ‘male, female, or transgender.’
In 2018, consensual ‘same-sex’ intercourse was decriminalised in Navtej Johar vs. Union of India, which meant that Section 377 could no longer be used to demonise and punish queer love.
Now, in 2024, the Indian Penal Code (IPC), has been entirely replaced by the ‘Bharatiya Nyay Sanhita’ (BNS), while the Code of Criminal Procedure (CrPC), has been replaced by the ‘Bhartiya Nagrik Suraksha Sanhita’ (BNSS).
The mainstream narrative is that the ‘colonial’ yoke has finally been overthrown and that India will now be governed by its own laws. The 19th century moral code of British imperialism has finally been scrubbed clean from the country.
Sounds good, right?
Unfortunately, the reality is far darker.
Forgotten people
In October 2023, just a few days before the Supreme Court denied queer people the right to marriage equality, a 20-year-old Pune man was allegedly kidnapped, extorted, and then sexually assaulted by three men.
In 2020, only 236 transgender people were registered as victims of all crimes that were committed across the country. This number is a minute fraction when compared to the 2011 census, which noted that there were 4.8 million trans people living in India.
Apart from these, there are countless other horror stories that the queer community is deeply familiar with, and have been acknowledged through experiences shared online as well.
Also read: Kerala High Court Recognises Family Spaces As “Sites Of Abuse” For LGBTQIA+ Folks
The idea of being openly queer is a privileged one, and only a fraction of the vast community have the liberty to do so.
Time and again, studies have shown that queer people not only face higher levels of online abuse, but also have a greater threat of sexual violence than cis-gendered heterosexual people.
The harsh reality is that queer people, including gay men and transgender people, are regularly sexually harassed, molested, raped, and then denied any sort of legal recourse.
A simple Google search for ‘Grindr experiences in India’ also reveals scores of stories about queer men being subjected to unimaginable ordeal and even being ‘outed’ to their natal families.
But shouldn’t the law work to protect all citizens from such incidents of violence, regardless of their gender identity?
Everyone is after all equal before the eyes of the law, according to the Indian Constitution.
Also read: Queer People in Abusive Relationships do not get to Rest
Is the law selective too?
Starting July 1, 2024, Indian men will not have a clear law protecting them from sexual assault and rape.
The BNS has completely removed the provisions of IPC’s Section 377, which continued to criminalise sexual offences against men, transgender individuals, and even animals.
This is a nod to the patriarchal mindset that ‘strong and brutish’ men cannot be sexually assaulted, and those who do have such experiences are somehow inferior in their masculinity.
Also read: Relevance of Masculinity and Authority: Reflections on Akbar’s Reign
Real-life implications
To understand how the BNS and BNSS would affect queer people, this author caught up with Advocate Suraj Tomar (he/him), who practises at Delhi’s Karkardooma Court.
He echoed that there is no equivalent to Section 377 in the BNS, which can have a devastating effect on a survivor of sexual violence who may be a man or a trans-person.
He added: “We know that queer people are more susceptible to violence, especially in Tier-2 cities and remote districts of India. In 2016, a young man was abducted by a group of men and gang-raped on the campus of Banaras Hindu University. There are many news articles where the man recounts his experience of how the police mocked him about this when he went to file a complaint. In 2023, we heard of another case of a man ending his life in Gorakhpur (in UP) because a few men raped him, after which he was being blackmailed. A report by the National AIDS Control Organizaiton (NACO) in 2015 says that 1 out of every 5 transgender persons in India faces sexual violence. Queer people who are closeted or belong to financially unprivileged groups were hesitant to seek justice even when there were provisions for punishment for sexual violence. Now, when there are no clear provisions, they will be more susceptible to sexual violence as it isn’t seen as a crime.”
When it comes to the use of gendered language in BNS, Tomar added that “Chapter V of BNS deals with offences against children and women. Clause 63 is the equivalent to Sec. 373 of the IPC, which basically defines rape. It starts with “A man is said to commit rape …”. The question remains that if a man rapes a transgender person, a transgender person rapes a man or a woman, or if a woman rapes another woman, then the victim has no grounds to seek justice.”
Just like the requirement of a doctor’s approval to get a transgender card in India, the use of such language that reinforces the binary, will negatively impact people who do not conform to the ‘man-woman’ discourse.
Also read: The Future is Gender-Neutral: Non-Binary Words for a Non-Binary World
No outrage?
According to news outlets, several petitions have already been put forward questioning the new laws, with calls for the use of gender-inclusive language in the BNS and BNSS.
Sharif Rangnekar (he/him), the writer of QueerSapien, has also spoken out on how 20 years ago he was assaulted and did not have any legal recourse owing to stigma and the threat of ostracisation.
In an Instagram video, he elucidates how the same may happen today, now that no legal recourse is even available. The combination of dogma and stigma can be deadly.
Even people outside the queer community have expressed their concerns. Supreme Court lawyer Indira Jaisingh has said that ‘India will wake up to Police Raj’ if the new criminal laws kick in.
Economist Amartya Sen is not considering the BNS as a ‘welcome change’ since they were ‘implemented without consultation.’
‘Lesser’ Evil for a Greater Good?
It is now clear that the queer community has gotten the short end of the stick. But this supposed ‘de-colonisation’ has other setbacks too.
Adv. Tomar elucidates how the term “‘terrorism’ has been defined in broad and unclear terms in the BNS as something that may ‘intimidate’ the general public.”
He added that “adultery has been omitted, and murder by a group of people having a common identity like religion, caste, etc. has a lower punishment now.”
One positive aspect of the new law is that electronic evidence is now ‘primary evidence’, addressing the growing threat of cybercrimes and the trail of criminality that exists online.
But what will these minor victories mean for gay or straight cis-men or transgenders who are assaulted and find the courage to go to court, only to find that the law, like the rest of society, isn’t built for them?
Way forward?
Across the board, many legal experts have agreed that the BNS and BNSS will deeply affect Indians’ daily lives negatively. But there remains confusion as to how exactly this will happen.
Shreya Gupta, a law student and queer person, elaborates on how the “implementation is fraught with confusion, exacerbated by the Indian judiciary’s existing backlog. This uncertainty is reflected in states like Karnataka, where opposition to the laws is prompting considerations for state-level amendments. Given the current circumstances, introducing these laws may not be the most prudent move.”
Also read: From the Diary of a Queer Law Student
1.4 billion people are now governed by new criminal laws, and almost all of us have been in the dark about its effects. That is deeply unsettling.
Much more needs to be done to make the lives of Indian queer people easier. The recognition that assault can happen to anyone, irrespective of their sexual orientation, sex, and gender identity, is just the bare minimum.
Sadly, we have been failed by the very institutions expected to safeguard us.
