Once seen as an outdated relic that criminalised same-sex relations, Section 377 gradually evolved, through judicial interpretation, into a protective tool for those on society's margins, writes Gajanan Khergamker.
Under the new code - Bharatiya Nyaya Sanhita - India’s legal definition of rape has narrowed to apply solely to offences involving male perpetrators and female victims as was the case with the now-repealed Indian Penal Code's Section 375. Such a restricted scope fails to acknowledge the harsh realities faced by trans individuals, who continue to face grave risks of sexual violence. For many survivors from the trans community, Section 377 was their only legal recourse, especially in a society where their trauma is often ignored by the public—and disturbingly so by those tasked with their protection. Without it, trans victims of sexual assault are now relegated to categories like “grievous hurt,” effectively minimising the gravity of their suffering in the eyes of the law, reducing the severity of punishments for offenders, and setting back crucial progress towards dignity and respect..
Transgender persons, officially recognised as a “third gender” in 2014, saw a glimmer of hope with the Transgender Persons (Protection of Rights) Act, 2019. Yet, this law seemed more symbolic than substantial, imposing a mere two-year prison term for offences against trans persons—a penalty significantly less severe than that for similar offences against cisgender women. It was Section 377 that had, to some extent, allowed the trans community to seek justice with greater gravity, albeit reluctantly provided and seldom realised.
The removal of Section 377 also signals a departure from inclusive language that acknowledged diverse victims of sexual crimes. Consider the case of a trans woman’s assault in Bhiwandi, Maharashtra, last year. The police invoked Section 377, addressing the crime with appropriate severity. Similar cases have been addressed through Section 377, offering protection to those whose suffering would otherwise be overlooked and whose trauma had, until recently, been accorded some degree of validity by a legal system gradually learning to move beyond binary constructs.
Today, activists voice the frustrations of a community left stranded in their pursuit of justice. Vulnerable to prejudice and disbelief, many trans people face ridicule or dismissal when they approach the police, their pleas too often trivialised by societal biases. As per the National Crime Records Bureau (NCRB), trans individuals comprised only 0.006 per cent of all victims recorded in 2020—a figure so minuscule that it is, in itself, a reflection of systemic apathy. This statistic does not imply an absence of violence but rather an institutional failure to recognise, record, and redress it.
With the removal of Section 377, the Bharatiya Nyaya Sanhita appears to reflect a stance that threatens the fragile support once available to the trans community. A revised legal framework that disregards the community’s specific needs undermines their access to legal recourse and representation. Lawmakers may argue for a more streamlined criminal code, but this omission raises serious concerns about their sensitivity towards the lived realities of marginalised communities. To erase without adequate replacement, to redefine without considering those most impacted, is to dilute the very concept of justice for all.
This legal overhaul leaves the trans community in a state of uncertainty, navigating a justice system that seems intent on disregarding their unique challenges. Their fight for dignity, equality, and safety remains as relevant as ever. But as the ink dries on the Bharatiya Nyaya Sanhita, one cannot help but wonder: In an India that pledges freedom, where does justice stand for those whom the law fails to acknowledge? The struggle, it seems, endures—echoing through courtrooms, murmured in police stations, and reverberating through communities where justice is often an elusive dream.