Activists push for LGBTQ+-inclusive India penal code

(Photo by Rahul Sapra via Bigstock)

Indian Home Minister Amit Shah on Aug. 11 introduced three bills that are set to replace colonial-era criminal laws.

The proposals would replace the Indian Penal Code of 1860 with the Bharatiya Nyaya Sanhita, the Code of Criminal Procedures of 1898 and 1973 with the Bharatiya Nagrik Suraksha Sanhita, and the Evidence Act of 1872 with the Bharatiya Sakshya Bill. The Washington Blade in September reported these bills are not LGBTQ-inclusive.

An October report notes a parliamentary committee reviewing bills that would replace India’s penal codes is likely to recommend including gender-neutral provisions. According to people aware of the development, the committee will recommend the Indian government consider criminalizing non-consensual sex between men, women or transgender people.

The Hindustan Times reported the Home Affairs Committee is also likely to recommend “community services” and “life imprisonment” and other terms are better defined. The standing committee will send the report to the Home Ministry after it finalizes it. Although the report will not be binding, it will have a sweeping effect because the Indian government has said the bills would go to the parliamentary committee that Brij Lal, a Bharatiya Janta Party member who is in the Parliament’s upper house, for review.

The Supreme Court in 2018 in a landmark ruling decriminalized consensual same-sex sexual relations. Section 377, a colonial-era law that criminalized homosexuality, resurfaced during parliamentary committee discussions. 

Sources who spoke with the Hindustan Times indicated some of the law’s provisions remained applicable in cases of non-consensual sex between men, women or trans people after Section 377 was struck down. The new Bharatiya Nyaya Sanhita bill would eliminate any reference to Section 377, and there would not be a provision for non-consensual sex against men, women or trans people. The committee will, therefore, suggest the government include Section 377 in the new penal codes.

The British first introduced India’s penal code in 1860. The government adopted it after independence in 1947 and has amended it 77 times.

The penal code deals with criminal offenses in India, while the Criminal Procedure Code deals with the administration of substantive criminal laws. The Indian Evidence Act deals with the set of rules governing the admissibility of evidence in the Indian courts.

Section 63 of the Bharatiya Nyaya Sanhita bill still defines rape as sexual assault by a man against a woman. It does not recognize sexual assault by a man against another man or by a woman against another woman. Sexual offenses in India are not gender-neutral under law, and as a result the number of rape cases by a man against another man go largely unreported. There are no official statistics available on rape cases against LGBTQ people in India. 

“Our community is not represented in the committee, so we do not know the final decision of the panel,” said Prijith Pk, an LGBTQ activist and diversity manager for a corporation in Kerala state in southern India. “We suggest and request an inclusive committee that can consider the concerns of the community.”

Pk during a telephone interview with the Blade said there are concerns about laws that will deal with non-consensual sex against men because it could be misused against the community as the country’s British colonizers did in the past. Pk said MPs should consult with the community on how to make the measure inclusive.

“Our opinions also matter,” he said. “They have to consider our identity. They have to consider our rights too.”

Sudhanshu Latad, assistant advocacy manager for the Mumbai-based Humsafar Trust, an organization that promotes LGBTQ rights in India, said any law that considers gender should be equitable.

“As an organization, we feel that remedies available for any sexual offenses should be equitable and not equal. Only then true equality can be achieved,” said Latad. “There should be a circular for the police in the country to conduct sensitization within the law enforcement individuals.”

Latad also dismissed the possibility of the misuse of the proposed law against the LGBTQ community and said any statute could be misused against anyone (and this misuse) has nothing specifically to do with the community.) He did say, however, any potential misuse could harm the other party.

“I do not think this is any different in this situation,” said Latad. “The non-consensual sex is basically rape and rape of any identity or gender should be punished.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at He is on Twitter at @mohitkopinion. 

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