What Do the New Criminal Codes Mean For Queer People?

Three landmark judgments of the Indian Supreme Court have come out since the High Court of Delhi declared Section 377 of the Indian Penal Code (IPC)’s outlawing consensual sexual acts of adults in private unconstitutional.

Currently, we live in an India where being queer is not a crime and where the Constitution recognises transgender persons as Indians entitled to equality, and legislation exists for the protection of transgender persons.

Naturally, the beginnings of a legal trajectory that began a little more than a decade ago requires a deliberate effort to undo the sins of the past, where LGBTQIA+ individuals and groups have been persecuted.

Do the new criminal laws contribute to this trajectory? What are the additions to statutory protections available to queer people, and opportunities that the legislature lost?

Currently, we live in an India where being queer is not a crime and where the Constitution recognises transgender persons as Indians entitled to equality.

Most importantly, why are queer people protesting against the new laws?

This article reviews the criminal codes to understand where queer people stand today vis-à-vis the criminal justice system.

Section 377 is gone!

In 2018, the Supreme Court declared that Section 377 was unconstitutional. Section 377, however, remained on the statute books. It was read down to exclude consensual sexual intercourse between consenting adults.

This meant that non-consensual intercourse could still be prosecuted as an “unnatural offence”. Section 377, being a creation of the colonial machinery, was laudably deleted by the drafter of the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaces the IPC, sticking to their goal of decolonising criminal law.

Another favourable change is the addition of “transgender” in Section 2(ix) of the BNS. This makes it explicit that wherever the word “he” is used in the BNS, it would include men, women and transgender persons, unless stated otherwise.

This is a step towards including transgender people within the fold of criminal justice in a legal system in which transgender people have been left out of the text of legislation itself.

Section 377 is gone! (Derogatory)

Yet, the deletion of Section 377 in the BNS is being criticised for failing to protect queer people and making queer lives harder.

This is because this deletion creates a problem. In a legal system that recognises transgender persons, a Section 377 that only applies to “men, women or animals,” could exclude transgender people from its application.

But, at the least, given that Section 375 of the IPC only recognised rape committed by a man on a woman, a gay man who survived rape could file a complaint under Section 377.

The deletion of Section 377 has not been substituted by any legal provision that protects transgender persons and homosexual people. This becomes a great opportunity lost for the legislature. Most queer people have remained excluded from laws protecting them from sexual assault, something that was recognised by the committee which drafted the present version of Section 375 of the IPC.

In each of the following cases, there is little to no legal protection:

Rape of trans-women: The Transgender Persons (Protection of Rights) Act, 2019’s definition of a transgender person includes anyone whose assigned gender at birth does not match with their identified gender.

This specifically includes trans-men, trans-women, social groups such as hijras, and intersex persons. Section 18 of the Act provides only a maximum of two years of imprisonment as punishment for abuse, which is much lower than that provided under Section 375 IPC (now Section 64, BNS) which provides a minimum of ten years and up to life imprisonment.

Legally, it is possible that trans-women can fall under Section 64, BNS as women, which we will discuss presently.

Rape of a trans-man: The case of a trans-man is unique because before NALSA versus Union of India and the Transgender Act, they would legally only be recognised as women, protected under laws for women.

This creates a situation where most trans-men would have many documents that state that they are a woman or female. In theory, they would receive protection from Section 64 of the BNS since it protects “women”. But here the law offers them a false choice.

In 2019, a sessions court in Pune ordered bail for all four accused of the gangrape of a transgender person once it noted the “other” gender in the survivor’s documents.

The deletion of Section 377 in the BNS is being criticised for failing to protect queer people and making queer lives harder.

The prosecution contended that on the one hand, the absence of an offence against a transgender person made it difficult to establish an offence against the accused. On the other hand, the definitive understanding of gender in rape made it difficult to shift to Section 375 for rape.

This is notwithstanding that fighting as a “woman”—goes against their identified gender and in many cases their legal gender after the procedure to legally transition.

Rape of non-binary, intersex and other transgender persons: Similar to trans-men, these trans people would face a false choice, or they would have no option but to resort to Section 18 of the Transgender Act. If they were assigned male at birth, they would only have the latter choice.

Since legal recognition of being a trans-women requires a medical intervention which can be costly, many trans-women who do not have the means to afford the medical intervention would also fall under this category of non-binary transgender persons, with only Section 18, Transgender Act for protection.

This is because they would only possess a transgender certificate under the Transgender Act, and not a “change in gender” certificate, which helps them be recognised as women.

Rape of gay men: Since gay men do not fall under the definition of “transgender”, they possess no options other than provisions related to causing bodily hurt [Section 115(2) of the BNS], with a maximum punishment of one year.

Punishment is not all where matters differ. Cognisability and bailability of an offence also become an issue. A cognisable offence does not require a police officer to have a warrant to arrest.

Section 115(2) of the BNS and Section 18 of the Transgender Act are both non-cognisable offences. They are both also bailable offences, which means that the accused is entitled to bail.

In contrast, Section 64 of the BNS is both cognisable and non-bailable. Queer victims of sexual assault then face a greater lack of safeguards by criminal law from the danger of perpetrators who would have a greater opportunity to tamper evidence on bail or threaten witnesses and the victim themself.

All of this has pushed queer people into the ironic position for now having to demand that Section 377 stay, a mere handful of years after celebrating its demise.

Exclusion through gender-specificity

Similar to rape, there is a host of other gender-specific sexual offences that can only be committed against women. Sexual harassment under Section 74 of the BNS specifically mentions “woman” as the victim.

The only precedent on transgender persons being included in sexual harassment under Section 354A of the IPC is an instance where the commissioner of police in Delhi agreed to register such a case after the transgender complainant had travelled all the way to the Delhi High Court.

One should note that this was not the court laying down a judicial precedent that would change the way “woman” ought to be read in Section 354A, but rather an action by the police. In any case, gay men and any transgender person who is not a trans-woman would remain unprotected.

The same holds true for assault or use of criminal force with an intent to disrobe (Section 76), voyeurism (Section 77), stalking (Section 78) and words, gestures or acts intended to insult modesty (Section 79).

Given that Section 375 of the IPC only recognised rape committed by a man on a woman, a gay man who survived rape could file a complaint under Section 377.

Any gender-neutral provisions that queer people can then use are located outside the BNS or offer much lesser punishment.

The aforementioned committee responsible for drafting the present version of Section 375 of the IPC, the Justice Verma Committee, had also proposed Sections 354A to 354D of the IPC.

In each of these, the victim had been left gender-neutral, recognising how transgender and homosexual people also face sexual violence. These proposals were ultimately modified when the IPC was amended in 2013.

That the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 has not yet been read to include anyone who is not a cis-woman left the legislature with a ripe opportunity to create protections. Unfortunately, this was not done.

Does the law require that we include transgender persons?

In a judgment asking for marriage equality, many were left disappointed with the verdict of a court that declined this prayer. Supriyo versus Union of India, however, did make one significant contribution to trans rights: an explicit inclusion of trans-men and trans-women into marriage laws.

The court held that any transgender person who identifies as a man or woman would be considered a man or woman respectively for the purposes of marriage laws.

In other words, a trans-man can marry either a cis-woman or a trans-woman. This is a legal recognition of the standard trans-rights claim, that trans-women are women, and trans-men are men.

The court’s reasoning in doing so was to prevent a contradiction between the Special Marriages Act, 1956 (SMA) and Section 3 of the Transgender Act.

The latter requires that no public or private establishment discriminate against transgender persons. In limiting marriage between a “bride” and “groom”, the SMA would be discriminating against those transgender persons who clearly do not fit in a binary.

No reason from the SMA was visible to contend that a trans-woman cannot be a “bride” and a trans-man cannot be a “groom”. Section 20 of the Transgender Act states that the Act is not in derogation of any law at the time of its enactment.

Given that (1) the lawmakers were aware of the marriage laws at the time of the enactment of the Transgender Act and (2) nothing from the provisions of any of the marriage laws supports the contention that it is limited to heterosexual relations among cis-gendered people only, it led the court to harmoniously read both, to conclude that a transgender or an intersex person identifying as a man or a woman has the right to a heterosexual marriage under any marriage laws.

The significance of this ruling is not mere legal semantics. Supriyo provides a strong and judicially unanimously agreed basis for why the Sections of the IPC and the BNS ought to be read harmoniously with the Transgender Act.

The law, as it stands, can be argued to require that such a reading be provided. The legislature had the opportunity to insert this into the words of the statute itself; one that it missed.

In 2019, a sessions court in Pune ordered bail for all four accused of the gangrape of a transgender person once it noted the “other” gender in the survivor’s documents.

The Supriyo judgment was delivered months before the Acts were passed, giving time to debate and decide on how this principle could be incorporated into the statutes.

It is still possible to judicially ‘read in’ Supriyo into the new laws, which would bring trans-women under the protection of Section 70 of the BNS and other gender-specific provisions, but that can only be done by the judiciary unless amendments soon follow.

It would also clarify whether offences related to marriage, from Section 80 to 85 of the BNS, apply to trans-women and men or not.

What is the procedure?

Whether or not a queer person is excluded from the definition of the victim of an offence also has an impact on the procedure to be followed. Numerous procedural safeguards were built into the Code of Criminal Procedure, 1973 (CrPC) to protect women from exploitation by a largely male police force.

In other words, modifications were created in the procedure due to the vulnerable gender identity of a person. However, the CrPC as well as the Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), both feature no reference to transgender or homosexual people.

The following is a list of conscious opportunities that the legislature missed out to make the criminal justice system inclusive of queer people. The absence of clear guidelines disables even those police officers who are unprejudiced against queer people because they are confused about how to deal with them.

We first discuss the various provisions that pertain to cases of sexual offences against women. Section 21 of the BNSS states that in a case of Section 64 to 71 of the BNS, for all sexual offences, the court would be presided over by a woman.

Section 173 of the BNSS provides that in such cases, among other things, only a woman officer will record information provided by a woman. The case is similar for the examination of witnesses by the police under Section 180 and the provision of an in-camera trial under Section 366(2).

Each of these provisions provides gender-based protections. The exclusion of queer people from all sexual offences also deprives the criminal justice system of clear guidelines on how protection in the procedure can be provided to transgender persons.

Similar to rape, there is a host of other gender-specific sexual offences that can only be committed against women.

It also allows legislators to ignore larger but fairly obvious questions that ought to be addressed after recent changes in the law. Transgender persons can be both, accused and victims. If the purpose of the BNSS is to improve the CrPC, and it is committed to the objective of preventing gender-based exploitation in the criminal procedure, then it stands to reason that it ought to address the following concerns.

If a woman cannot be arrested after sunset owing to various dangers [Section 43(5) of the BNSS], what is the procedure for arresting a transgender person, who is equally, if not more, susceptible to hostility and exploitation, especially by the police?

If a woman can only be arrested by a female officer [Section 43(1) proviso of the BNSS], what does the sex or gender of the arresting officer ought to be when arresting a transgender person?

In requiring the attendance of a witness who is a woman, disabled person, or male person not between the ages of fifteen to sixty years, a police officer must only do so at the residence of the witness(Section 179 of the BNSS ). What happens in the case of a transgender person?

Inevitably, situations will occur where these scenarios will happen. Lack of clarity on what gender to write on an arrest warrant can result in a transgender person being kept in incorrect prison cells. By remaining silent, the legislators have chosen to not provide clear guidelines to police officers or courts to follow.

Conclusion

The new criminal laws were positioned as an anti-colonial instrument at its inception. Given that Section 377 of the IPC and the resulting queerphobia can be then thought of as a colonial remanent, it would be reasonable to hope that these laws would further queer rights.

This article shows that while small steps were taken in this direction, there were more opportunities lost than grabbed. It finds that queer people are largely absent from the new criminal laws.

Given that Section 377 of the IPC and the resulting queerphobia can be thought of as a colonial remanent, it would be reasonable to hope that these laws would further queer rights.

What is regretful is that many of the proposals around these lost opportunities were present in the general discourse, be it writings on the exploitation of queer people by the police, reports on difficulties of transgender prisoners, gender-neutrality for victims, or the Justice Verma Committee Report itself.

One can only hope that the wise men and women in the Parliament (since unfortunately, transgender people remain outside it) reconsider and amend the codes towards a truly anti-colonial position.

Farhan Zia is a legal empowerment facilitator at the Centre for Social Justice, Ahmedabad and holds a LL.M. in comparative constitutional law from the Central European University.