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India’s Proposed New Penal Code Fails to Protect LGBTQ+ Rights 

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India’s Proposed New Penal Code Fails to Protect LGBTQ+ Rights 

The proposed replacement for the IPC misses an opportunity to shed colonial vestiges of oppression against sexual minorities.

India’s Proposed New Penal Code Fails to Protect LGBTQ+ Rights 
Credit: Depositphotos

In the annals of legal history, certain moments stand out as pivotal junctures that shape the course of a nation’s legal framework. The year 1833 saw one such turning point, when the British Parliament enacted the Charter Act, heralding the establishment of a Law Commission in India to consolidate and codify Indian laws. As part of this act, a fourth ordinary member was added to the Governor General in Council for India, who had expertise in lawmaking. Lord Macaulay was appointed as this fourth ordinary member and played a significant role in the development of Indian laws.

In 1835, Lord Macaulay became the chairman of the First Law Commission. Along with J.W. Macleod, G.W. Anderson, and F. Millett as commissioners, he submitted the (Draft) Penal Code on May 2, 1837. The Governor-General in Council sought revisions to the draft, leading to the eventual passage of the Indian Penal Code (IPC) on October 6, 1860. The IPC would come into force on May 1, 1861.

Fast forward 162 years. On August 11, 2023, the Indian legal landscape once again found itself at a critical juncture, as the Lok Sabha referred three bills to the Parliamentary Standing Committee. These bills aim to reform India’s criminal justice system by replacing the IPC, the Criminal Code of Procedure, and the Indian Evidence Act with newer laws.

The revised IPC, to be known as the Bharatiya Nyaya Sanhita (meaning Indian Justice Code), proposes repealing 22 provisions, amending 175 existing provisions, and introducing eight new sections. It contains a total of 356 provisions, down from the original 511. During his Lok Sabha speech, Home Minister Amit Shah emphasized the need for criminal laws to be created by and for Indians. He referred to Prime Minister Narendra Modi’s vision of “Panchpran,” or five goals for the next 25 years, including the advancement of a developed India.

Despite the aim to remove the colonial mindset, the revised bill falls short for it inadvertently reinforces a facet of colonial thinking: Victorian morality’s influence on public and private life, particularly in matters related to gender roles and sexual control.

Enze Han and Joseph O’Mahoney, scholars of Asian studies and international relations, aptly highlight a critical aspect of the British colonial project – a component known as the “civilizing mission.” This mission, in Han and O’Mahoney’s analysis, encompassed the perceived duty to safeguard Christians from perceived “corruption,” while also aiming to correct and Christianize indigenous customs. 

Central to this approach was the belief that laws could be wielded as tools to instill European morality among populations perceived as resistant to change. The legislative push emerged from the conviction that “native” cultures inadequately punished what the colonizers deemed ‘“perverse” sexual behavior – such as same-sex relationships. The colonizers saw this as an opportunity for compelled re-education on sexual norms, justified by their notion of societal betterment.

As Human Rights Watch pointed out in its detailed 2008 report on the origins of India’s anti-gay laws, this rationale to “discipline” was deeply entrenched in both an imperial and racist mindset. In the colonizers’ minds, as HRW put it, “‘native’ viciousness and ‘white’ virtue had to be segregated: the latter praised and protected, the former policed and kept subjected.”

Settler societies like pre-independence India, characterized by their complex social dynamics, compelled imperial rulers to craft an environment where “white virtue” was shielded and celebrated, while native culture was policed and subjugated. The introduction of Section 377 in the IPC exemplified this ethos – an effort to exercise control over and criminalize non-heteronormative male sexuality.

The colonial administration, beyond its overt legal enforcement, also extended its vicious tentacles into the realm of medicalization. This approach pathologized behaviors that fell outside the heterosexual norm, including transgender persons, particularly hijras. The construction of deviant narratives around hijras was a deliberate strategy to criminalize them as a collective group. The legislative instruments that emerged – such as the Indian Penal Code (IPC) of 1861 and the Criminal Tribes Act (CTA) of 1871-1897 – relied heavily on forensic medical science to furnish “rational” evidence. This evidence was intended to establish a link between fluid sexualities and criminal activities, to ultimately bolster court proceedings against hijras.

This logic – entrenched in the colonial era – persisted beyond independence, continuing to subject LGBTQ+ individuals to persecution. Various key representatives from different political parties played a role, at various points, in perpetuating discrimination against the LGBTQ+ community. Their actions and inactions often aligned with the same oppressive colonial mindset that Section 377 was built upon.

The BJP government, during the Marriage Equality hearings, could have distanced itself from this colonial heritage. Embracing the diversity of modern India would have meant supporting the legal recognition of queer marriages, a step toward acknowledging the rights of all citizens. Instead, the government chose to oppose this step, arguing for the state’s “legitimate interest” in limiting the recognition of marriage to unions between “biological men and biological women.” 

This stance is perplexing, particularly given the government’s passage of a Transgender Persons Act in 2019, which ostensibly aimed to grant equal rights to transgender individuals but faced considerable backlash from activists for its shortcomings and lack of true inclusivity.

This same lack of inclusivity and the perpetuation of colonial notions of sex and gender are glaringly visible in the BJP’s proposed Bharatiya Nyaya Sanhita, which, in its current form, does absolutely nothing to expand the already minuscule rights of LGBTQ+ people – rights that currently hang in the balance as the Supreme Court deliberates on the Marriage Equality case.

For example, Chapter 5 of the proposed revised IPC, which deals with offenses against women and children, lacks provisions that address cases involving individuals who do not fall within these specified categories. Notably absent from this chapter is the recognition of LGBTQ+ rights, particularly in relation to gay men. Section 63 of the code, which defines the crime of rape, continues to perpetuate gendered stereotypes by narrowly defining rape as a crime committed by a man against a woman. This definition fails to encompass instances of man-to-man rape or rape involving transgender, non-binary, and other individuals who do not conform to the binary gender categories.

Furthermore, Exception 2 to Section 63 retains the controversial marital rape exception, a holdover from colonial-era laws. This exception allows for the continuation of a deeply rooted practice that has long been criticized for perpetuating gender inequality.

Another concerning aspect is found in Section 38, which pertains to the right to self-defense. This section permits an individual to cause severe harm or even use lethal force against an attacker if the assault is carried out with the intent of gratifying “unnatural lust.” However, the term “unnatural lust” is not defined within the code. This phrasing closely mirrors the language used in the now-repealed Section 377, which criminalized same-sex activities as “carnal intercourse against the order of nature.” The lack of clarity surrounding the definition of “unnatural lust” leaves room for interpretation and potential misuse of this clause. It could potentially include a wide range of consensual sexual activities, including oral sex, group sexual activities, and the use of intimate products designed for sexual pleasure.

While Section 2 of the proposed bill claims that the pronoun “he” and its derivatives are meant to encompass all genders, the gendered language present in Chapter 5 contradicts this assertion. The omission of transgender individuals from the code, except in its definitions section, underscores the code’s failure to truly reflect the inclusion of all genders as intended.

The Bharatiya Nyaya Sanhita has missed an opportunity for genuine reform, falling short of aligning with the fundamental principles encapsulated in “Panchpran.” By disregarding the rights of LGBTQ+ individuals, the current government’s message inadvertently perpetuates a distressing narrative: that LGBTQ+ citizens are excluded from the same legal protections extended to others, thus reinforcing a painful sense of marginalization and vulnerability. 

Strikingly, while the code thoughtfully includes provisions to safeguard women, children, and religious sentiments, it omits any mention of offenses against the LGBTQ+ community. This omission paints a disconcerting picture, leaving the grim reality that instances of violence and harassment targeting LGBTQ+ individuals could potentially remain unchecked and inadequately addressed by the legal system.

The conspicuous absence of hate crime provisions specifically tailored to address LGBTQ+ targeted violence further underscores the limitations of this code. Even as society evolves, and as international discourse on human rights continually advances, the glaring absence of legal protection for LGBTQ+ individuals within this code is glaringly concerning. It raises critical questions about the government’s commitment to the welfare and equal rights of all citizens.

It is a paradox that “Nyaya,” a term signifying justice in Sanskrit, finds itself associated with a code that sadly fails to uphold this very principle for the LGBTQ+ community. This reality casts doubts on the potential for substantial changes in the near future, especially considering the prevailing hardline stance of the current government against LGBTQ+ marriage rights. The glaring discrepancies between the professed commitment to progress and the actual provisions in the revised IPC serve as a stark reminder that a government’s stance on human rights significantly influences its ability to drive a nation toward a truly inclusive and equitable future.