The Indian Penal Code barely dealt with the issue of sexual violence against animals, putting it in the catch-all category of "unnatural offences" along with same-sex sexual violence and, before the Navtej Singh judgment, homosexuality. The proposed Bill deletes the provision altogether.
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ON March 5 this year, a man was arrested and jailed for raping a dog in Indrapuri area of Delhi. It was the second such case in Indrapuri within 10 days.
The man was booked under Section 377 of the Indian Penal Code, 1860 (IPC) and Section 11 of the Prevention of Cruelty to Animals Act, 1860.
The provisions in Section 377 that criminalise sexual violence against animals have been the only recourse that animal activists have so far had to prosecute perpetrators.
In August, the Union government introduced three Bills in the Lok Sabha: The Bharatiya Nyaya Sanhita Bill, 2023, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023, and the Bharatiya Sakshya Bill, 2023, to replace the IPC, the Criminal Procedure Code, 1973 and the Indian Evidence Act,1872, respectively.
The biggest weakness in the proposed Bill that seeks to replace the IPC is the complete elimination of Section 377 of IPC— without putting in place alternative mechanisms of redress for sexual crimes against animals and men.
There is no doubt that Section 377 has its roots in colonial-era morality which regarded intercourse between partners of the same sex as a crime.
“Now, with the removal of the whole Section, without the issue of sexual violence members of the same sex being addressed elsewhere, the proposed Bill leaves the victims of sexual crimes unprotected.
Sodomy criminalised sex between same sex partners as "unnatural or immoral" irrespective of whether it was consensual or not.
The long-repealed Buggery Act, 1566, of the British colonial-era prescribed death penalty for "unnatural" sexual acts as they are "against the will of the God".
In its landmark judgment of September 6, 2018, the Supreme Court in Navtej Singh Johar versus Union of India read down Section 377 of the IPC, decriminalising sexual relations between consenting adults of the same sex.
At the same time, the court upheld those provisions in Section 377 that criminalise non-consensual sexual acts performed on victims of the same sex.
Now, with the removal of the whole Section, without the issue of sexual violence members of the same sex being addressed elsewhere, the proposed Bill leaves the victims of sexual crimes unprotected.
The case of sexual crimes against animals is even more complicated. Even in the previous law, animal rights activists would seek justice for the animal victim of rape under Section 377 because it included— under the term "unnatural"— the offence of bestiality.
The term bestiality in itself was problematic, as it has its origins in an anthropocentric Judeo-Christian framework, where bestiality refers to the brutish, earthy and savage elements allegedly inherent in non-human creatures.
Bestiality under Section 377, therefore, provided 'accidental' relief to animal victims of rape, but the law did not view the offence from the point of view of providing justice to the animal victim.
Rather, it judged the human as perverse— for engaging in sex with an animal or beast— by holding the human guilty of bestiality.
Even though problematic, bestiality as defined in Section 377 is the only law under which people who rape animals can be booked.
A report on animal cruelty In Their Own Right— Calling for Parity in Law for Animal Victims of Crimes by Alok Hisarwala Gupta in collaboration with the Federation of Indian Animal Protection Organisations and All Creatures Great and Small documented 82 cases of animal sexual abuse between 2010 and 2020.
It is clear that animals are routine victims of sexual abuse in India.
Most of these cases go unreported, even when there are provisions to bring justice to the animals.
“"Doing away with the colonial-era statute would have made a big difference if the proposed Bill had introduced a gender-neutral rape law…"
The absence of any such law to address animal rape opens the door for such crimes to proliferate.
Doing away with the colonial-era statute would have made a big difference if the proposed Bill had introduced a gender-neutral rape law and included a distinct provision for sexual offences against animals, acknowledging them as victims of the crime.
There are gender-neutral rape laws in 77 countries, including the United States, the United Kingdom, Canada and the Philippines.
India needs to adopt the recommendation of the 172nd Law Commission Report, 2000, that rape be considered gender-neutral.
The Union government must go a step further and enact a progressive animal law that is also species-neutral, recognising the sentience and dignity of animals and bringing justice to animal victims of sexual abuse.