Flaws in BNS reflect regressive thinking

Even though it happened 20 years ago, Sharif Rangnekar still remembers that assault. The pain, the fear, the shock, the shame. Back then, sex between men was illegal, and there was a whole lot of stigma attached to even talking about it. Moreover, men are supposed to be “big and strong”, so to admit to being a victim of sexual assault was to go against the grain of what was supposed to be masculine. But, he said, “I couldn’t even go to the police because what would I say? So, for years I couldn’t and didn’t talk about it.”

On Monday, Rangnekar, now an author (Queersapien) and founder-director of Rainbow Lit Fest, posted a video on his Instagram. It starts with the words: “I am a rape survivor.” Though he’s spoken about the assault earlier in a book, the video was necessary because, as he said, the new criminal laws or the Bharatiya Nyaya Sanhita (BNS) that came into effect on July 1 do not recognise the rape of men, boys, transgender people or even animals.

Two decades ago, when Rangnekar was assaulted, there was the infamous Section 377, a leftover from the colonial era that made consensual gay sex or, as it chose to call it, “sex against the order of nature” illegal. Even as the UK legalized it, the former colonies, including India, were slow to junk it. It took a protracted legal battle before the Supreme Court decriminalised gay sex in a landmark 2018 judgment.

But, significantly, Section 377 was retained in the Indian Penal Code with provisions criminalising sexual offences against animals, men, and transgenders. Having decriminalised consensual sexual acts between adults, it became the only legal recourse in cases of male and transgender rape and even marital rape, where the wife could establish non-consensual anal sex.

Now, with Section 377 excised from the BNS — despite a standing parliamentary committee report requesting its inclusion — that protection has vanished.

Can it be that our lawmakers really don’t know that men, boys and transgender people are also victims of rape? In 2022, the National Crime Records Bureau recorded 987 cases under Section 377, a number that falls far short of reality given the woeful under-reporting.

Other apprehensions have already been expressed about the BNS. Until the old cases and appeals are disposed of, there will be two parallel systems of law, the old and the new, senior advocate Indira Jaising told Karan Thapar in a recent interview. It is also likely to lead to dozens of petitions challenging the new criminal laws being filed in the Supreme Court, she said.

The BNS should have heralded a new era in progressive lawmaking. Instead, it contains anachronisms, including one that makes sex under a false promise to marry an offence punishable by 10 years. Perhaps someone forgot to tell our lawmakers that we no longer live in the Victorian era where chastity was prized above all, and sex outside the bounds of marriage was forbidden, at least for “good women” (because, of course, men are never judged for it).

The BNS was an opportunity to showcase a modern nation and acknowledge social change. Instead, a much-needed decolonising project has failed to escape a regressive mindset.

Namita Bhandare writes on gender.The views expressed are personal