Representative image created by OpenAI’s DALL-E
Ranjit Nanoo
Malayali audiences might still remember the wounded and detached look of Joshua, a character evocatively brought to life by Prithviraj Sukumaran in Koode, that breezy but emotional 2018 film from Anjali Menon. As the film gently implies, Joshua is a male rape victim who was abused in his teens by his uncle, probably over a prolonged period.
Menon, who also wrote the screenplay of the film, deserves applause for daring to bring male rape into the plot. Yes, boys and men too get raped, but in our country, this subject is taboo and is swept under the carpet most of the time.
Rendering the plight of the male rape victims even more tragic is the fact that the Law seems hesitant to stand by them. There are no clear legal provisions to give justice to such rape survivors. However, this lacuna has now come up for examination in the Delhi High Court in a Public Interest Litigation (PIL) which was taken up for consideration last week.
Before Bharatiya Nyaya Sanhita (BNS) 2023, the country’s main criminal code came into force on 1st July 2014, the victims had to seek justice under the Indian Penal Code (IPC) 1860, the predecessor of BNS. The challenge faced by male rape victims was that Section 375 of the IPC which defined rape and prescribed punishments for that offence did not mention males as rape survivors. However, a glimmer of hope for justice was available to them in Section 377, the erstwhile controversial anti-sodomy law of India that categorized homosexual acts between men as being “carnal intercourse against the order of nature”. The courts could use this Section to consider punishing the perpetrators, though not for rape, for “carnal intercourse against the order of nature”.
The following extract from a blog shared by Humans of Bombay and subsequently shared by Times of India brings out the tragic and scary experience of a male rape victim from Mumbai who at a tender age, was raped by his uncle:
“My uncle was giving me a bath when I was 7 years old, and that’s when it first happened. He forced me to give him a b— j– and proceeded to have — sex with me, multiple times. At that point, I didn’t know what was happening to me, whether it was ok, whether it was normal. I got so used to it, that I would enter his house and lie down on the bed, just wanting it to get over as soon as possible. At 12, I began to get gang-raped by his friends, and I would bleed but keep quiet…because what if I wasn’t considered ‘man enough’ to not bear the pain? My childhood went by having two worlds where I would not remember the rape until something triggered it and then I would cry endlessly. I would not enter a male washroom because I was scared that I would be raped again…I grew up having no self-esteem.”
The victim goes on to narrate his efforts to find justice through legal means:
“We tried to get some legal help but we realized that there’s no law against child sexual abuse for boys in the country. By the time I was 18, no laws applied to my case — so there was no justice.”
The victim’s understanding of the Law as narrated above seems to have been incomplete, though. He was apparently not advised that Section 377 of IPC,1860 had the potential to offer protection for the male victims of forced sexual acts.
The protection of Section 377, however, is no longer available, as it was entirely deleted when the BNS 2023 replaced the IPC 1860. The petitioner in the present PIL before the Delhi HC has argued that the absence in BNS of a provision on the lines of the erstwhile Section 377 of IPC poses a threat to men and to LGBTQ persons. There is no denying that BNS 2023 does contain some general protections against bodily harm to a person, described by phrases like “any offense affecting the human body” (Section 36), “an assault with the intention of committing rape” (Section 38) and being subjected to “grievous hurt, or slavery, or to the unnatural lust” (Section 140). However, as argued by the lawyer Gantavya Gulati, the petitioner of the aforesaid PIL in Delhi HC, the said provisions suffer from a lack of definitions of key phrases and further, the BNS 2023 does not provide any specific protection to males who are sexually assaulted.
The Court which began hearing the PIL last week, has in the first instance asked the Union Government to clarify its stance on non-consensual sexual offences inflicted on men, consequent to the deletion of Section 377 of IPC. Though the judiciary is not empowered to direct the legislature to enact any law, the present intervention of Delhi HC by taking up this PIL has the potential to bring the spotlight to the issue of male rapes, which presently exists in the shadow regions of the Law.
In the past, the PIL route has brought about revolutionary progress in the legal sphere in India, especially in areas like women’s rights and environmental protection. Will the present PIL provide a pathway to justice for male rape victims, whose existence the law so far has not acknowledged?
(Ranjit Nanoo is a legal commentator based in New Delhi)
