Unlike Section 377 of the IPC, which treated sodomy as a serious crime punishable by life imprisonment or 10 years with a fine, the new Bharatiya Nyaya Sanhita (BNS) does not consider sodomy a punishable offence. Legal experts, criminologists, human rights groups, and psychiatrists are urging the government to address this omission in the new law.
‘Inadvertent legislative gap’
“While BNS was enacted to offer comprehensive protection against sexual offences, its lack of specific provisions on non-consensual sodomy risks under-recognising certain forms of sexual violence,” said Advocate Mohini Priya, advocate of record, Supreme Court.
‘Need for clarity’
“The recent dismissal of a PIL by the Supreme Court, challenging the omission of provisions on non-consensual sodomy, suggests the judiciary’s reluctance to encroach upon legislative functions. Yet, in parallel, the Delhi High Court has raised the issue in a petition, directing the Centre to clarify its stance on whether the BNS should include specific protections for non-consensual sodomy and related offences. This reflects a growing acknowledgment of the need for legislative clarity to ensure that all individuals, regardless of gender, have equal access to justice under sexual violence laws,” said Advocate Mohini Priya.
Way out
“Addressing this issue could involve two main approaches. First, an amendment to the BNS that clearly defines non-consensual sodomy as a punishable offence would. Such a change would align with the progressive interpretation of sexual violence laws,” said Advocate Mohini Priya.
Legal vacuum
“Under the BNS there is no section that the police can use to file a complaint of a victim who has been forced to have anal sex against his or her will. This is a grave concern as sodomy cases continue to abound,” said Valay Singh, Project Lead India Justice Report, New Delhi.
What’s the recourse for victims?
“The judiciary needs to respond to this serious deficit immediately to ensure that access to justice for such victims is not denied under BNS. The police too are left in a quandary, in the absence of a specific section dealing with sodomy. One hopes that BNS will be reviewed on this front,” said Singh.
Associated offences
Advocate Dinesh Tiwari, said, “Sodomy not being an offence under the new BNS criminal law is nothing beyond the biggest blunder by those who drafted it. The least the police may consider is to register associated offence/s while committing sodomy, such as simple hurt or grievous injuries (subject to medical examination), abduction, confinement, wrongful restraint, etc.”
Discriminatory
If non-consensual sexual activity with women is a punishable offence, then how can any non-consensual sexual activity with men not be punishable? Are males not humans, or do they not have any dignity or respect? Now, as per the BNS, anyone can have forceful sexual activity with a male and the victim will not have any right to file a case against the perpetrator. This is an irony, very inhuman and discriminatory,” said Dr Indrajit Khandekar, professor, forensic medicine, MGIMS, Sewagram (Wardha).
