BNS omission of non-consensual sodomy provisions sparks legal concerns

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 lawlsquoInadvertent legislative gaprsquoldquoWhile the Bharatiya Nyaya Sanhita BNS was enacted to offer comprehensive protection against sexual offenses its lack of specific provisions on nonconsensual sodomy risks underrecognizing certain forms of sexual violencerdquo said Advocate Mohini Priya Advocate of Record Supreme Court of IndialsquoNeed for clarityrsquoldquoThe recent dismissal of a PIL by the Supreme Court challenging the omission of provisions on nonconsensual sodomy suggests the judiciaryrsquos reluctance to encroach upon legislative functions Yet in parallel the Honrsquoble 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 nonconsensual 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 lawsrdquo said Advocate Mohini PriyaWay outldquoAddressing this issue could involve two main approaches First an amendment to the BNS that clearly defines nonconsensual sodomy as a punishable offence would strengthen Indiarsquos 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 realitiesrdquo said Advocate Mohini PriyaLegal vacuumldquoUnder 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 aboundrdquo said Valay Singh Project Lead India Justice Report New DelhiWhats the recourse for victimsldquoThe 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 laterrdquo said SinghAssociated offencesAdvocate Dinesh Tiwari said ldquoSodomy 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 offences while committing sodomy such as simple hurt or grievous injuries subject to medical examination abduction confinement wrongful restraint etcrdquoldquoThis needs immediate attention from the government and the offence of sodomy needs to be brought under BNS to give justice to victimsrdquo said Adv TiwariDepressing perspectiveldquoSomehow 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 hisher 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 psychiatristDiscriminatoryIf nonconsensual sexual activity with females is a punishable offence then how can any nonconsensual 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 regardrdquo said Dr Indrajit Khandekar professor forensic medicine MGIMS Sewagram Wardha