Mumbai: When pride month ended in July 2024, the Internet was filled with pictures of pride parades from around the world celebrating and recognising lesbian, gay, bisexual, transgender, and queer (LGBTQIA+).
Historically, pride month is celebrated in honour of the 1969 Stonewall Uprising, which started after the New York City police in the US raided the Stonewall Inn, a gay club in Greenwich Village. The raid, fuelled by anger over police harassment and social discrimination, ignited six days of protests and became a catalyst for the gay rights movement.
To commemorate the riots, America's first gay pride parade was held on the first anniversary, marking one of the most significant events leading to the LGBTQIA+ movement. Since then, many countries across the world have held public demonstrations or pride days to show progress, demand representation, and encourage collective action.
Legal Milestones In India
On the eve of Indian Coming Out Day, which commemorates the Naz Foundation vs Government of NCT of Delhi and Others judgment decriminalising homosexual sexual activity, India marked a significant shift in its legal landscape on 1 July 2024, with the implementation of three new criminal laws: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS), and the Bharatiya Sakshya Adhiniyam.
These statutes replace the Indian Penal Code (IPC) of 1860, the Code of Criminal Procedure of 1973, and the Indian Evidence Act of 1872. While these changes are lauded as progressive and modern, they raise important questions, specifically BNS, which has replaced the IPC.
The new criminal law has no provision similar to section 377, which penalised "unnatural offences." section 377 defined these offences as voluntary carnal intercourse "against the order of nature" with any man, woman, or animal, punishable by imprisonment or a fine. This omission means that sexual assault on men and trans men may no longer be adequately addressed, equating such acts to minor physical injuries. This oversight highlights a significant gap in legal protection for men and trans men under the new laws.
Even though the government is looking to include a section on sexual crimes against men and transgender persons, which is currently missing from the BNS, no such bill has been tabled yet. In the absence of these, until the amendment is enacted, police officers are instructed to apply other relevant sections, such as those concerning wrongful confinement and physical hurt, in cases involving such crimes.
Legal & Gendered Perspectives
It is important to consider legal and gendered perspectives to fully understand the implications of removing a section akin to section 377 of the IPC from BNS.
Legally, BNS removes provisions that previously recognised and penalised certain acts, such as section 377, which historically criminalised homosexuality but was later limited to non-consensual acts.
The decriminalisation of section 377 was centred on the principle that private consensual activities are beyond the state's purview, which was upheld by the landmark Supreme Court judgement in Navtej Singh Johar v. Union of India.
The Navtej Johar judgement not only recognised an individual's right to their sexual orientation but also reaffirmed that consensual acts between adults are protected, while non-consensual acts remain criminalised.
The judgment, while upholding the idea of consent, also included a crucial caveat for men who face violence from other men, given the lack of protectionist laws in India addressing male-on-male sexual violence.
Even newer laws, such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013, centred on the concept of power imbalance, only include sexual harassment against women, which is understandable due to the disproportionately higher rates of sexual violence women face.
However, it remains important for the law to also consider protections for men, necessitating the incorporation of a gendered lens.
The Role Of Power In Sexual Violence
Although section 377 was often seen as homophobic, catering to fears of penetration by homosexual men, it is crucial to incorporate the concept of power into this analysis.
This was also exemplified by the recent case wherein a member of the legislative council (MLC) from Janata Dal (Secular) (JD(S)), a regional political party of Karnataka, Suraj Revanna, was arrested for allegedly sexually assaulting a male party worker under Section 377 of the IPC.
This incident, occurring just before the implementation of the BNS, highlights a critical gap in the new law, which lacks provisions similar to Section 377 IPC.
As the act of forceful sodomy of a man is no longer a crime in itself, the police would have been unable to prosecute Revanna for the same under BNS. There are reports that police officers are being instructed to apply other relevant sections, such as those concerning wrongful confinement and physical hurt, in cases involving such crimes.
In his work on men’s contradictory experiences of power, Michael Kaufman discusses that while men collectively enjoy social power, there are significant hierarchies and power differences among men.
These differences are influenced by factors such as class, race, sexual orientation, and other social categories. While men benefit from social power and privilege, they also experience pain, isolation, and alienation due to the very structures that grant them power.
In a patriarchal society that dictates specific masculine roles and behaviours, commanding men to always "be the man," the shame of being sexually assaulted is profound.
Even if a man manages to overcome this shame, BNS provides no legal framework for him to report the assault.
Non-Hegemonic Masculinities
Kaufman also points out and reiterates Raewyn Connell’s seminal work from her book Gender and Power that not all masculinities are hegemonic.
Some men, especially those from marginalised groups, do not conform to dominant ideals of manhood. These men might hold power within their specific communities while being powerless in the broader societal context.
For instance, the ideals of working-class masculinity differ from those of upper-middle-class masculinity. These variations are tied to these groups' specific economic and social contexts.
Kaufman emphasises the need to consider intersectionality when analysing men’s power and how their identities are shaped by multiple factors, including race, class, and sexuality, which intersect to create unique experiences of power and powerlessness.
As for non-hegemonic masculinities, it is important to understand queer men’s experiences and conceptualisations of sexual pleasure, which has been paid very little attention to apart from HIV and STI prevention literature.
The Sexual Positional Identities (SPIs) describe anal sex roles that are commonly endorsed by queer men, including “top,” “bottom,” and “vers,” or versatile wherein a “top” refers to someone who takes the insertive position, a “bottom” takes the receptive role, and a “vers” or versatile individual is open to either role.
These SPIs carry implications beyond the mere description and are linked to problematic gender norms and conceptualisations of masculinity within a heteronormative, gendered system due to social expectations imposed by hegemonic norms.
For example, in a paper by Michelle Marie Johns and colleagues on gender and power, they found that tops are often viewed as more dominant and masculine, while bottoms are seen as more submissive and feminine, which mirrors traditional heterosexual gender norms where the penetrative partner (top) is seen as having more power.
Power plays a significant role in how young gay men make decisions about sexual positioning, wherein the top is seen as the dominant player, setting the rules of the sexual encounter, while the bottom is more passive, relinquishing control.
Power & Safety
These power imbalances also affected safety practices.
For instance, some bottoms reported forgoing condom use because the top, seen as the dominant partner, took control of the situation, thereby highlighting the lack of power in negotiating safer sex practices among young gay men.
While discussions of intersectionality often centre on women, it is crucial to extend this discourse to men, recognising the diverse experiences and vulnerabilities among different masculinities. This approach should include non-hegemonic masculinities and trans men, ensuring that those with less power in the gender hierarchy are also protected.
The National Crime Records Bureau has recorded offences under section 377 since 2014, with the most recent 2022 report documenting 987 cases.
Despite the government redrafting the Indian Penal Code nine years after the Navtej Johar judgment, it conspicuously failed to include protections for men.
This significant oversight betrays a lack of understanding about the varied forms of masculinities and genders, particularly for trans men and cross-dressing men who face unique challenges exacerbated by societal prejudice and the absence of legal recognition.
This omission in the new legal framework has largely escaped public attention, underscoring the need for a more inclusive perspective on gender and masculinity.
The Plight of Trans People
The NCRB does not maintain specific data on crimes against trans people.
As per the data from Trans Murder Monitoring (TMM), a global project tracking homicide against transgender and gender-diverse persons, India recorded 102 registered murders of transgender persons between 2008 and 2021.
The NCRB report from 2021 reported that 236 trans persons are reported victims of all crimes in India. However, these low numbers are a reflection of severe underreporting of crimes, a result of inadequate documentation of the lives of trans persons.
As per a 2016 study conducted by National AIDS Control Organization (NACO), 31.5% of transwomen reported having been “forced to have sex in first sexual encounter with a male partner. However, the legal framework under the old penal regime failed to adequately protect transwomen.
In India, the landmark NALSA judgment of 2014 granted a range of rights to transgender persons under the Indian Constitution, with the right to self-identification being a primary focus.
The Transgender Persons (Protection of Rights) Act 2019, codified these rights into law.
However, the execution of the right to self-identification remains entangled in procedural difficulties such as issuing trans identity cards is hobbled by bureaucratic delays, gender biases, digital access issues, lack of sensitivity among the administrative staff, and unwarranted verification processes, rendering the lives (and deaths) of transgender individuals largely invisible in the country's statistics.
Addressing Shortcomings In New Laws
While trans women could register their complaints under section 354A of the IPC, which has now been introduced as section 74 in the new BNS Act, without any change, for the offence of sexual harassment, the removal of section 377 leaves transpersons with limited options for legal recourse for sodomy.
This purposeful reading out of protection for men and trans persons is not only a failed opportunity to create a more just and equitable legal system but also reeks of misogyny in as much as there is a tacit understanding that it is only the bodies of women that need protection and that such protection need not be given to an anyone who is not a woman or a child.
As India progresses with new laws, it is crucial to address their shortcomings.
So while celebrations and commemorations of Pride Month, Coming Out Day, and National Transgender Day are important, they risk being mere tokenism towards the Sustainable Development Goals of LGBTQIA+ inclusion if we do not understand the nuances of sexuality within the gay, transgender, bisexual, and queer communities.
This includes recognising how sexual positioning interacts with social positioning, such as religion, caste, and class.
To make meaningful progress, we must grasp the dynamics of power or the lack thereof and contextualise these in terms of lived experiences.
For example, consider the violence faced by trans individuals or the shame that might prevent gay men from reporting sexual violence.
Understanding these realities is crucial for the law to serve as a refuge for marginalised sexualities. When legal provisions that offer protection are removed, it strips these individuals of their last resort, effectively denying them their citizenship rights.
(Kartikeya Bahadur is a co-founding partner at Apricus Legal and represents civil liberties cases at the Bombay High Court. Sumati Thusoo is a PhD student at Rutgers School of Management and Labor Studies and an extramural researcher at Monk Prayogshala.)
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