BNS omits non-consensual sodomy provisions, raising concerns among legal experts and human rights groups

Experts seek clarity on non-consensual sodomy under BNS. Representation pic

Unlike Section 377 of the IPC, which treats sodomy as a serious crime punishable by up to life imprisonment or 10 years with a fine, the new Bhartiya 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 the Bharatiya Nyaya Sanhita (BNS) was enacted to offer comprehensive protection against sexual offenses, its lack of specific provisions on non-consensual sodomy risks under-recognizing certain forms of sexual violence," said Advocate Mohini Priya, Advocate of Record, Supreme Court of India.

‘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 Hon'ble Delhi High Court has raised the issue in a petition, directing the Central Government to clarify its stance on whether the BNS should include specific protections for non-consensual sodomy and related offenses. 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 strengthen India's commitment to protecting all citizens from sexual violence. Such a change would align with the progressive interpretation of sexual violence laws seen in cases like Nirbhaya v. Union of India (2017), where the court underscored the importance of laws responsive to evolving social realities," said Advocate Mohini Priya.

Legal vacuum

"Under the BNS there is no particular 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 / legislation needs to respond to this serious deficit immediately to ensure that access to justice for such victims is not denied under the new BNS. The police too are left in the quandary, in the absence of a specific section dealing with sodomy under BNS. One hopes that BNS will be reviewed and the section addressing sodomy would be brought back, sooner than later," said Singh.

Associated offences

Advocate Dinesh Tiwari, said, "Sodomy is not an offence by itself, under the new BNS criminal law and it is nothing beyond the biggest blunder committed 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."

"This needs immediate attention from the government and the offence of sodomy needs to be brought under BNS, to give justice to victims," said Adv. Tiwari.

Depressing perspective

"Somehow, the mentally afflicted in India always seem to end up getting the short end of the stick in Civil Society. Perhaps it is a fallout of the stigma attached to mental illness. And from therein the denial of the very presence of mental issues. How else does one explain the rationale behind Indian Laws and the Lawmakers for not providing any provisions in the new Bharatiya Nyay Sanhita (BNS) which replaced the Indian Penal Code (IPS) of legal redressal to a person sodomised against his/her will? By default, the perpetuation of the emotional scarring of the sodomized victims, become the learned legal view, said Dr Bharat Vatwani, a Ramon Magsaysay Award winner and psychiatrist.

Discriminatory

If non-consensual sexual activity with females is a punishable offence, then how can any non-consensual sexual activity with adult males be non punishable? Are males not humans, or do they not have any dignity or respect? Why does the consent and will of a man for sexual acts have no value in Indian society? 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 sexual assault case against the alleged perpetrator. This is an irony, very inhuman and discriminatory. Our parliament has created a vacuum in this regard," said Dr Indrajit Khandekar, professor, forensic medicine, MGIMS, Sewagram (Wardha).