What About Us?: India's New Penal Code Abandons Animals To Sexual Violence

Scrolling through the social media outrage in the past couple of weeks over the stray dog 'menace' issue, many users unearthed various struggles of the voiceless, including a disturbing video of a female stray dog being raped by a man, which went viral. This reminds one of George Orwell's celebrated quote from the Animal Farm -

“All animals are equal, but some animals are more equal than others”

This biting Orwellian satire was intended to expose the duality of power in the book, but now seems to unsettlingly resonate in reality for many strays in India.

Humans take pride in being the complex creation of the Almighty, while Animals are simple beings; the latter could not create a world for themselves where social media, courts, and state agencies would register their pleas every time their dignity is violated.

This reality ironically absorbs the Orwellian dichotomy, when the animals in his book unite against the human-inflicted cruelty- "four legs good, two legs bad".

Today, with the absence of an explicit prohibition on bestiality, this saying runs true as it is the two-legged species that are committing unthinkable deeds on the voiceless four-legged, leaving the animals, especially the stray animals, doubly disadvantaged- first by their silence and then by a flawed legal system.

Under the erstwhile Indian Penal Code, S.377 laid down the law against bestiality. It stated that having sexual intercourse with any animal would be considered an 'unnatural offence' and punishable with life imprisonment or with imprisonment of either description for a term up to ten years and a fine.

The complete provision reads :

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years."

In the landmark decision of Navtej Singh Johar v. Union of India in 2018, the constitution bench of the Supreme Court decriminalised consensual homosexual intercourse between adults. However, the decision clarified that sexual acts with animals, sexual acts with minors and any non-consensual acts amongst homosexual persons would still be penalised under the reading of S.377.

So, the Supreme Court ensured that bestiality would continue to be a criminal offence in the country. Until, arrived the 'Bharatiya Nyaya Sanhita (BNS)' in 2023.

Under the present penal code of BNS, bestiality as a crime does not find any explicit or implicit mention. While the new code defines the criminal offence of Rape under S. 64, it does not mention the sexual assaults against animals as a constituent of rape.

Interestingly, the BNS has no provision which would correspond to S.377 in the erstwhile IPC. So now, with a clear legal vacuum staring at our faces, the man who you see brutally raping a dog in a viral social media reel will not be facing any legal consequences under the BNS Act.

Pre-BNS and Post-BNS Scenario :

The BNS was officially implemented on July 1, 2024. This means that any act of bestiality committed after July 1, 2024, will not be considered a penal offence under the BNS. However, if the act is committed before July 1, 2024, then the erstwhile S.377 would apply.

So any individual committing the offence of bestiality before July 1, 2024 could be sentenced to life imprisonment or up to 10 years' jail along with a fine. But what are the consequences if the same scenario occurs after July 1, 2024?

The answer lies in the Prevention of Cruelty to Animals Act 1960 (PCA). S.11 of the PCA lays down several instances which will be considered as 'treating animals cruelly'

The act of bestiality could come under the wider terms of S.11(1)(a), which penalises the following conduct: “ beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animals to be so treated”

Here, the conduct leading to torture and resultant 'unnecessary pain or suffering' could widely couch the issue of sexual assaults against animals.

Often, such cases of cruelty are done by the offender by chaining the animal wrongfully; here, S.11 (1)(f) would also apply. The provision states that cruelty would also arise if a person -

“keeps for an unreasonable time any animal chained or tethered upon an unreasonably short or unreasonably heavy chain or cord;”

Is This Enough? Small Penalty For Violator, The Voiceless Pay A Big Price

The absence of specific laws penalising bestiality is not the only grievance, but also that the alternative remedy that we have is also a matter of disappointment.

The punishment imposed for cruelty under S.11 is (1) a fine of Rs. 10- 50 as a first-time offender; (2) a fine of Rs. 25- 100 or imprisonment up to 3 months or both in case the offence is committed for two or more times.

In a day and age where cases of bestiality are surfacing online, having such a minuscule repercussion only emboldens the offender.

This is in stark contrast to several other developing countries that impose stricter punishments for such a gruesome act.

In several African countries, the offence of bestiality is punished with imprisonment for life or long-term imprisonment for mostly 14 years.

Here is a country-wise breakdown of a few noteworthy instances:

Tanzania: The Penal Code criminalises bestiality under S. 154, stating, “Any person who… has carnal knowledge of an animal… commits an offence and shall be liable to imprisonment for life [with a minimum term of thirty years]

Uganda: The Penal Code of 1950 under S. 145 penalises bestiality under unnatural offences. It states that any person who (b) has carnal knowledge of an animal commits an offence and is liable to imprisonment for life

Kenya: The Penal Code of Kenya under S. 162 teats bestiality as a felony and imposes imprisonment for 14 years.

Nigeria: The Criminal Code Act, which is similar to the Kenyan Law on bestiality, also treats the offence as a felony with 14 years of imprisonment

Interestingly, Malaysia and Brunei Darussalam have an identical S.377 in their respective penal laws. However, in both countries, the punishment is comparatively stricter. In Malaysia, the penalty is imprisonment up to 20 years, along with a fine or whipping. In Brunei Darussalam, the penalty is up to 30 years, along with whipping.

Perhaps, our neighbours, Pakistan, Bangladesh, and Myanmar, had adopted from the colonial drafting of India's Section 377 in the erstwhile IPC, and have similarly worded provisions penalising bestiality. In all these states, the penalty includes longer terms of imprisonment, a minimum sentence of 2 years and a maximum of 10 years.

Meanwhile, Nepal (National Penal Code 2017) and Bhutan (S.211 Penal Code of Bhutan 2004) have separately and more explicitly dedicated provisions in their penal codes. Bhutan expressly criminalises 'Bestiality' in its provisions and treats it as a 'petty misdemeanour', which is subject to a sentence to a term ranging from one month to less than a year.

However, under its penal code, a 'petty misdemeanour' can be enhanced to a misdemeanour, with a higher sentencing range (1-3 years).

Nepal (S. 227) criminalises bestiality at two levels; sexual intercourse with a cow would attract 2 years of imprisonment with a Rs. 20,000 fine. While sexual intercourse with any other animal would lead to 1 year imprisonment with a Rs. 10,000 fine.

Considering the above analysis, India, among its immediate neighbours, is the only country that, at present, does not have adequate provisions to protect the dignity of its animals.

Caution From The Past & Supreme Court's Take :

Before the coming of the BNS in its present form, the Parliamentary Standing Committee on Home Affairs, chaired by Mr Brij Lal, in its 246th report dated November 10, 2023, took note of the difficulty in completely removing S.377 as interpreted by the Supreme Court in the Navtej Singh Johar case from the BNS.

The report noted, “The Committee feels that to align with the objectives stated in the BNS's Statement of Objects and Reasons, which inter-alia highlights the move towards gender-neutral offences, it is mandatory to reintroduce and retain the section 377 of the IPC. The Committee therefore recommends the Government to include section 377 of IPC, in the proposed law.”

Even after the passing of the BNS, a PIL was filed before the Supreme Court bench of CJI DY Chandrachud, Justices JB Pardiwala and Manoj Misra, seeking directions under Article 142 to include sexual offences against men, trans persons and animals under the BNS.

The bench refused to entertain the same, observing that the Court cannot direct the Parliament to create an offence.

Fetching For Hope: Questions I Leave Open To You

With hope, even the minority voices turn into a majority. The issue of sexual offences against animals has not gone unnoticed by our Parliament. Perhaps in November 2022, the Union Ministry of Fisheries, Animal Husbandry, introduced the PCA Amendment Bill, which brings a separate dedicated provision - Section 11 A to recognise and penalise the act of bestiality.

As per the Bill, under S. 11A(i) “carnal intercourse against the order of nature with any animal” will be treated as 'Gruesome Cruelty' and the offence will be punishable with either (1) a fine ranging from Rs. 50,000- Rs. 75,000 or (2) any cost decided by the judicial magistrate; (3) or with imprisonment of sentence ranging from 1-3 years; (4) or both bother fine and imprisonment.

While the penalties prescribed here are higher and stricter than those under the existing S.11 discussed earlier, the new provision still falls short in mandating both a fine and imprisonment together.

Compared to the laws of other developing countries, especially our neighbouring nations, the penalty imposed may require reconsideration.

This leads to my first question: based on which empirical research has the parliament suggested the penalty modification for the crime of bestiality?

Typically, amendments to laws, particularly those related to criminal liabilities, are introduced after studying official data trends documented by the National Crime Records Bureau (NCRB) on the issue.

For example, post the Nirbhaya Rape Case outrage, the Parliament brought in a major amendment to the Juvenile Justice Laws, by enacting the Juvenile Justice (Care and Protection of Children) Act, 2015 where children aged between 16-18 years can face trial as adults for charges under 'heinous offences'.

Before passing the said amendment, the Department-related Parliamentary Standing Committee on Human Resource Development in its Report No. 264, expressly analysed the NCRB data on heinous crimes like rape and murder being committed by the Juveniles.

The accurate collection of the NCRB data on the issue was quintessential for the Parliament to weigh in all factors and even come face to face with the reality of the issue.

It is concerning that the NCRB does not keep a statistical record of the number of sexual assaults committed specifically against animals each year.

Before the coming of the BNS, the NCRB reports only mention the total number of crimes committed under the broader bracket of S.377 IPC. There is no bifurcation to indicate the reported instances of bestiality. The same is evident from the latest 2022 annual report, 'Crime in India.'

Which means that officially, India does not have any public data on the number of animals that have been victims of sexual assault/rape or 'unnatural sex' as one would call it.

This leads to my second question: If the NCRB does not make specifications for the offence of bestiality, how would the Central and State Governments ensure data transparency on the issue?

And lastly, considering the post-BNS regime, if any new instances of bestiality were to be reported, they would be considered as cruelty under S.11 of the PCA. Doing this would lead to a dilution of crucial data on the latest crime rate when it comes to bestiality.

So, how are we ensuring that animals subjected to bestiality get justice amidst the lack of criminal laws and crime documentation recognising the offence in the first place?

While the answers to these questions remain unanswered, the voiceless victims of bestiality and animal rights supporters have a long path to tread inside and outside of the courtrooms.