Bharatiya Nyaya Sanhita 2023 Scraps “Unnatural Sex” As Offense

In the Bharatiya Nyaya Sanhita, 2023, the Union government is proposing to replace the Indian Penal Code (IPC) and has eliminated “unnatural sex” as an offense, which under the existing Code carries a punishment of a 10-year jail term for sodomy and bestiality.

It’s interesting to note that in 1967, the British decriminalized private, consensual homosexual actions carried out by men over the age of 21. In its 2018 decision in the Navtej Johar case, a five-judge Supreme Court panel read down Section 377 of the IPC to decriminalize adult members of the LGBTQ community engaging in consenting sexual encounters in private.

Not a single provision in BNS is similar to Section 377 of IPC, which says: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence”. This is erased from BNS, raising a question as to whether a man forcing himself on another man, either by coercion or using his position of superiority, would remain an offence or not.

Another issue that arises is whether bestiality, which is defined as sexual activity defying the natural order, would be considered an offense by either a man or a woman.

In two further sections of the IPC, the term “unnatural sex” is mentioned. It’s interesting to note that such clauses remain unchanged in the BNS. The right to private (self) defense is granted by Section 100, which allows a person who is engaged in unnatural intercourse to harm or kill the aggressor without being penalised for doing so in order to protect himself from being sodomized. Now, a similar clause is mentioned in Section 38 of the BNS.

According to Section 367(4), a person who kidnaps someone in order to satisfy a “unnatural lust” faces a 10-year prison sentence. The BNS currently has a similar provision in Section 138(4).

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