Section 377: Should it be wiped out or not
Section 377 of the IPC which is commonly referred to as the ‘anti-sodomy law‘ was introduced during the British rule in India (1860), to criminalise homo-sexual activities. It terms voluntary carnal intercourse against the order of nature with man, woman or animal as ‘unnatural offences’ and prescribes punishment with imprisonment for life, or with imprisonment of either description fora term which may extend to ten years, and fine.
The centripetal forces of the society operating via mechanisms of societal regulations and principles of ‘morality’ have always endeavoured to level-off individual differences and bring them under one homogenous umbrella. The present debate concerning the utility/ disutility of section 377 of Indian Penal Code (IPC) essentially reflects the questions of the rights of sexual minorities’ vs the general good of the society. The term sexual minorities refer to those gays, lesbians and bisexuals who refuse to fit every expression of their sexuality under one homogenous umbrella to satisfy society, and reaffirm their rejection of a singular identity. Those who suffer continuous dis-crimination, persecution and prosecution in the hands of the society and the law enforcement agencies.
Section 377 of the IPC which is commonly referred to as the ‘anti-sodomy law’ was introduced during the British rule in India (1860), to criminalise homo-sexual activities. It terms voluntary carnal intercourse against the order of nature with man, woman or animal as ‘unnatural offences’ and pre-scribes punishment with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and fine. Section 377 is been vehemently criticised by rights activists who term it as an ‘ill-devised weapon’ that perpetuates discrimination, social stigma and police abuse against such sexual minorities. Section 377 has also been criticised for ‘making criminals out of homosexuals’. However, cognisance needs to be taken of the fact that it is the only law that also deals with child sexual offenders.
Section 377 came in for the strongest criticism towards the middle of the first decade of the 21st century. Its critics have brought out a strong case for its repeal on the grounds of human rights violation, hindrances towards HIV/ AIDS work, medical grounds, economic consequences and soon. They even cite ancient Indian scriptures to back their demand. More and more NGOs and rights activist groups led by eminent intellectuals are increasingly be-coming vociferous in their demand for repealing Section 377.
Why Section 377 should be wiped out?
- In the globalised world of the 21st century, when a large number of countries worldwide have legalised gay and lesbian rights, it is nothing short of an aberration that in India the outdated Section 377 of the IPC framed in 1860, defines homosexuality as a crime even though an ever increasing population of the same-sex couples is a reality.
- It needs to be understood that the law, a remnant of Victorian morality, was made in 1860, when any sexual activity that was not meant for procreation was considered a sin. The law was essentially a part of the colonial project of regulating and controlling the British and Indian origin subjects.
- Ironically, while the British drafted section 377 of IPC, replacing a tolerant Indian attitude towards sexuality with a highly oppressive one; this law was repealed in the U.K. in 1967.
- Today when homosexuality is recognized across the globe, India remains untouched. Even though the tolerant Indian attitude towards sexuality finds support in literature drawn from Hindu, Buddhist, Muslim and modern fiction which testify to the presence of same sex love in various forms.
- Ancient Indian texts such as Manu Smiriti, Arthashastra, Kamasutra, upansishads and Puranas even refer to homosexuality. This nullified claims of the supporters of section 377 of IPC.
- In fact Indian society, with its overt emphasis on reproduction has made same-sex love a taboo. But with changing times and with the society becom-ing permissive about homosexuals, the law must be in step with the times.
- These sexual minorities (homosexuals) are often branded as ‘queers’ and ‘aberrations’ – precisely what they are not. It needs to be understood that homosexuals are normal humans attracted to their own gender.
- Relationships are and should be defined by comfort levels and not soci-etal sanctions, like heterosexuality, homosexuality is an orientation which is essentially not unnatural.
- Medically speaking, there is sufficient evidence which points to homo-sexuality being a function of biology, in other words nature. This reasoning deals a solid blow to the very basis of section 377 of IPC, as it can be well understood that the so called ‘unnatural offences’ is in fact not unnatural.
- The strongest point of criticism relates to the gross human rights viola-tions that section 377 of IPC makes sexual minorities go through. Incidents of harassment of the homosexual community and social discrimination in India remain widespread despite years of campaigning by sexuality rights groups in the country. Their human rights are routinely violated by police, goondas, health care providers, families and other state/not-state actors. Even accesses to redressal mechanisms are hindered by their criminal sta-tus.
- As Indian laws recognize only hetero sexual marriages, the right to marriage and family is denied to same sex couples and transsexuals. This along with various civil laws overtly and covertly deny sexuality minorities their right to inheritance, property, insurance, ESI, EPF, gratuity, workmen’s compensations, pension, adoption, and so on.
- Additionally our laws do not recognize sex-change. Therefore, most rights including right to education, employment, housing, economic opportunities, health, marriage, adoption, ration card, etc. are denied to Hijras (Eunuch) and other transsexuals, as they cannot prove their identities, their birth certificates and their present identities do not match. 13. An issue of immediate concern that essentially calls for scraping of section 377 of IPC is the hindrance it causes in HIV/ AIDS prevention work. It stands in the way of the efforts of NACO (National Aids Control Organization) which continues to encourage diverse sexual practices within a safe: – sex, HIV/AIDS prevention frame work. All these above discussed issues relating to section 377 of IPC essentially points out towards the ill-effects that this law is producing on the sexual minorities, the society as a whole, economic and societal dimension included. Whereas, wiping out this archaic law will bring in better prospects in the form of prevention of such gross human rights violation, ensure equality and equity, facilitate HIV/ AIDS prevention efforts, and bring about higher inclusive growth and so on.
- Section 377 of IPC needs to be wiped out as it violates the provisions of the Indian constitution on equality and non-discrimination.
- Further, as far as the current consensus go, the state should not regulate private matters of sex between consenting adults. Even the law commission of India in its 172nd report (on reviewing rape laws) and recently the Plan-ning Commission of India have lend credence to this view, by recommend-ing the repeal of section 377 of IPC.
Why Section 377 can’t/shouldn’t be wiped out?
- It needs to be understood that outright repealing of section 377 of IPC is neither feasible nor desirable. As at present it is the only law of the land that empowers the state to act against cases of child sex abuse.
- The government’s view is that, it is the only law that could be used by it to interfere in the private sphere in the interest of public safety and protection of health and morals.
- The government also claims that section 377of IPC is used in cases of assault and deleting this section could ‘open food gates of delinquent behav-ior’
- Cognizance needs to be taken of the fact that endogenous (from inside) change is always a good change, whereas exogenous change always brings in with it many side-effects. Thus arousing public consciousness and creat-ing a support base in the society is of utmost importance.
- India still remains traditional and orthodox regarding such issues. The Indian mind set is yet to change. They invariably refer to homosexuality as ‘western and something ‘foreign. Homosexuality is thus widely perceived as being against the traditional values and moral principles.
- Law enforcement officers claim that in spite of its existence, section 377 is hardly used in case of consenting adults except when they receive a complaint.
What needs to be done?
- Awareness building happens to be of prime importance. Awareness that will help the common man understands the real aspects of homosexuality and not be bogged down by vicious propaganda.
- The law enforcement agencies, the media, the legal fraternity and the judiciary need to be made sensitive to the plight of these sexual minorities.
- The society needs to itself desire a change and come out strongly against such injustice against a section of the humanity. Only then such a change can be truly effective and desirable.
- From the legal perspective and in view of the fact that section 377 happen to be the only law against child sex abuse, the government needs to be proactive enough to quickly frame an alternative law regarding child sex abuse.
- Section 377 can also be ‘read down to wipe out parts exclusively related to homosexuality. This precisely is the primary contention of the case filed by Naz foundation seeking repeal of section 377 that is presently subjudice before the Supreme Court of India.
SC analysing far reaching consequences
A bench of Justices G S Singhvi and S J Mukhopadhaya of Supreme Court has said its final decision on the correctness of the Delhi High Court judgment – which decriminalised Section 377 of Indian Penal Code covering a sexual act in private between consenting adults – could have far reaching impact on several sexual offences listed in the penal laws. The bench has requested the counsel for parties to keep in mind the evolving social ethos as the key words in the HC judgment — “consenting adults committing a sexual act in private” – could have a bearing on several other sexual offences enumerated in the IPC.
According to Section 497 which defines adultery says “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor”. Section 377 of the IPC which deals with unnatural offences reads: “Whoever voluntarily has carnal intercourse against the order of nature, with any man, woman or animal, shall be punished….”. NGOs had challenged the legality of Section 377 before the HC on the ground that it targeted homosexuals as a class and hence violated the LGBT (lesbian, gay, bisexual, transgender) group’s right to equality guaranteed under Article 14, right to privacy under Article 21 and the constitutional guarantee under Article 15 prohibiting discrimination on the basis of sexual orientation of such persons. Thus, from discussion given above, the scale appears heavily tilted towards the cause that supports wiping out section 377 of the IPC. And in view of its multifarious ill effects on sexual minorities in particular and the society as a whole in general, and also considering the true historical antecedents and changes taking place in societies globally-a pragmatic and humanitarian approach becomes essential. Further, the arguments that support the continuation of section 377 of IPC and criminal status of homosexuality are in fact very few and far between. Hence, wiping out the criminal status of homosexuality in India could usher in a new dawn in numerous Indian lives.