To 

Home Ministry, Government of India 

In 2018, the Constitution Bench of the Supreme Court of India unanimously declared that "insofar as Section 377 criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution”. However, in its conclusion, it clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. Therefore the provisions of Indian Penal Code Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.

The new Bharatiya Nyay Sanhita 2023 which goes into effect on 1st July 2024 omits these provisions of IPC 377. It misreads jurisprudence developed on IPC 377 and presumes gendered vulnerability of a singular kind in India. It ignores the recommendation of the 246th report by the Standing Committee on Home Affairs which notes that Bharatiya Nyaya Sanhita 2023 has no provision for non-consensual sexual offences against males, transgender persons and non-humans (animals). The Indian Government, in its fixation on females (assigned at birth) as the only recipients of sexual violence, stands to forget men and transgender persons, who are sexually coerced in homes, educational campuses, offices, streets, prisons, conflict zones and sexual violence motivated by inter-caste positions, ethnicity, religion, medical dependency and disability. 

The National Crimes Record Bureau of India registered 826 and 955 cases under IPC 377 for 2020 and 2021 respectively. Given the rampant under-reporting of sexual crimes against men and transgender persons along with the mishandling of investigations by police officers, lack of awareness among various stakeholders and cultural taboo associated with male (assigned at birth) reporting sexual coercion, India stands to devolve from a constitutional democracy if the Bharatiya Nyay Sanhita 2023 goes into effect in its inadequate form without a wider consultation. 

This letter demands the Home Ministry to review this glaring omission and its legal deficiencies and include provisions which protect men, transgender persons, women and animals against sexual assault and carnal rape. 

1. The provision should clearly define consent (in line with Navtej Singh Johar v Union of India Judgement 2019) in order not to re-criminalise homosexuality; 
2.  It should categorically distinguish between the violator and the victim;
3. It should refrain from the colonial baggage of terms like "against the order of nature" which continue to stigmatise victims of carnal rape and promote a culture of silence around rape and sexual violence.

Reference: 

IPC Section 377 

Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section

Navtej Singh Johar v. Union of India 2019: In its ruling, the Supreme Court stated that "consensual" sexual acts between adults cannot be a crime, deeming the prior law "irrational, arbitrary and incomprehensible.