Male victims still remediless: Former CJI UU Lalit criticizes BNS for not making rape laws gender neutral

Former Chief Justice of India UU Lalit recently delivered a lecture organised by the Supreme Court Bar Association on “BNS 2023 and IPC 1860: Continuity, Change and Challenges". Speaking at the lecture, Justice Lalit discussed the gender neutrality of laws on sexual assault.

Flagging concerns, Justice Lalit said that the new law has missed an “ideal opportunity” to extend protection to adult male victims of sexual assault after the repeal of Section 377 of the IPC.

He further recalled that after the 2012 Nirbhaya case, the Justice JS Verma Committee had recommended changes to Section 375 IPC, leading to an ordinance in February 2013 that made the provision gender neutral so that male victims could also be covered.

Noting how the Section 377 IPC, which criminalised unnatural sexual intercourse, including bestiality, has been dropped entirely from BNS, Justice Lalit added, "Now, what if the one adult is actually sort of subjected to it forcibly and without his consent?…So therefore you have not only lost that opportunity of making it gender neutral, which the ordinance had thought of, but you have also dropped 377, which means that if a man without his consent is subjected to that kind of offence, then today where is the window to ventilate the grievance? There is none. And that to my mind is completely an incorrect idea.".

"We have not only thrown the bathwater, we have also thrown the baby as well. So therefore we have lost the opportunity and made it completely a vacant idea where there is no grievance can be ventilated by a person who is a victim of that kind of crime", Justice Lalit added.

Justice Lalit also pointed out that under the IPC, Section 366A criminalised procuring a “minor girl” for prostitution or other activities, which was not gender neutral. In contrast, Section 96 of BNS uses the phrase “procuring a child,” which would cover male children also. He welcomed this change as well as the retention of gender-neutral wording in provisions corresponding to Sections 372 and 373 of IPC on selling and buying minors for prostitution, now Sections 98 and 99 in BNS.

Notably in 2022 the Supreme Court had disposed off a plea seeking directions to make gender neutral laws and reconsider the misuse of laws under the Indian Penal Code relating to sexual harassment (u/s 354A-354D), Criminal intimidation (506), intent to insult modesty of a woman ( U/s 509), Rape( U/s 376), Cruelty to women (U/s 498 A).

"The reliefs claimed in this writ petition is not capable of being granted by this Court in exercise of its writ jurisdiction as that would constitute encroachment into legislative field. Hence, this writ petition is dismissed", a division bench had said.

The petition filed by law students Anam Kamil and Shrikant Prasad had submitted that the trend of misuse of sexual offences laws by women is at rise in the country ,where the respect ,honour,dignity of men are sabotaged by the society merely when an allegation of sexual related offence is made.

The petitioners had argued that “In today’s world, women are also harassing males and subjecting them to cruelty. Hence the petitioners have submitted that these laws should be amended according to the present needs and situation in the same manners as the decriminalization of Homosexuality by the Court in 2018.