Backgrounder:Section 377 of IPC

The Recent Supreme Court Judgement on Section 377 of IPC  to overturn the 2009 Delhi High Court verdict that decriminalised gay sex has been a condemned largely by the Indian Society.This article will give you a basic understanding of what exactly is section 377 of Indian Penal Code and what is the logic to why it should be repealed.

Sec 377 IPC : Deals with Unnatural offences

“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 term which may extend to ten years, and shall also be liable to fine.”

According to this section Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

The ambit of Section 377, which was devised to criminalize and prevent homosexual sex  extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio (colloquially known as blow job) and anal penetration may be punishable under this law.

The British enactment of Section 377 was in deference to the existence of similar laws in Britain at the time that criminalized all non-pro creative sexual behavior, whether homosexual or heterosexual, in keeping with Victorian values relating to family and sexuality.

Section 377 remained unchallenged in independent India until the advent of HIV/AIDS towards the close of the twentieth-century, nearly 50 years after the British left the country. It remains on the statute books nearly 40 years after the anti-sodomy law was abolished in Britain itself.

Admittedly, the direct reach of Section 377 is limited; an individual is only eligible for conviction if he is found committing said sexual act, while those who merely profess same sex attraction are not. Only 46 cases were brought before the courts in the 150 years between 1860 and 2000, resulting in 29 convictions. Of these, only six prosecuted male-to-male adult anal intercourse and only one involved consensual anal sex, thus exposing the redundancy of  the law. Section 377 has been useful in convicting cases of child sexual abuse; 30 cases and 19 convictions.

But Evidence has been mounting in recent decades showing that the real “strength” of Section 377 lies in the manner in which it attracts police corruption and abuse of power. Being a cognizable (or high intensity) offence, Section 377 does not require a court order or warrant for making an arrest. This gives the police the power to threaten arrests and extort money, or to keep victims in jail indefinitely before letting them go in exchange for bribes. Often victims, particularly those who are unable to pay up, are also subjected to physical, verbal, and sexual abuse while in police custody, the latter being the very crime for which they were arrested. Thus, most arrests are not pursued in the courts (Human Rights Watch, 2002)

Also Read : Siddarth Dube’s article in The Hindu Going against the tide of history 

The first salvo against Section 377 of the Indian penal Code was fired in1992,six  years after the first HIV case was identified in the country .It came from a Delhi-based group,AIDS Bhedbhav Virodhi Andolan  (ABVA) – translated as Movement Against AIDS Discrimination – and followed the first-ever demonstration outside the police headquarters in New Delhi. The protest was against police harassment and arrests of suspected homo -sexuals in public parks under the nuisance clauses of the Delhi Police Act. The ABVA petitioned  the national parliament for repeal of Section 377 on grounds that the law violated  several articles of the Indian Constitution: 14 and 15 (protection against discrimination); 19 (right to freedom of speech and expression); and 21 (right to life and liberty, encompassing the right to privacy).The attempt was unsuccessful as the organization was unable to enlist the support of even one Member of Parliament  to argue the petition.

The Struggle for Sexual Rights:

The successor to the ABVA legal petition came six years later in 2001( Naz foundation)

2001:Naz Foundation( an NGO ), files PIL in Delhi High Court seeking legalisation of gay sex among consenting adults. It did not ask for the repeal of 377, but rather the exemption of private consensual adult sex from its purview (Lawyers Collective, 2001).  In doing so, both Naz and the Lawyers Collective were defer -ring to the concerns of child rights groups who were against the repeal of the law given the absence of sound laws that protected child rights.

September 26: Centre says gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.

September 26: High Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.

October 15, 2008: High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

November: Government in its written submission before the High Court says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.

July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting adults.

July 9: Delhi astrologer challenges High Court verdict in Supreme Court.

Later on, several others including BJP leader Singhal (since dead), religious organisations, rights activists and yoga guru Ramdev’s disciple have also opposed the judgement.

December 11, 2013: Supreme Court sets aside the 2009 Delhi High Court order which had decriminalised gay sex.

Also Read : ARGHYA SENGUPTA’s article in TheHindu : The wrongness of deference

Why should consensual HOMOSEXUALITY be legalized?

1.There were pressures on NACO from foreign funding agencies to include MSM (Men having sex with Men) in policy-making bodies as critical stakeholders, both in their own interests and in their role as a “bridge population” in infecting women.

Because in INDIA the combination of poverty, men’s tacit freedom from sexual controls, and women’s duty to unquestioningly submit to the sexual demands of their husbands, seemed a potent factor in women’s enhanced vulnerability to STDs and HIV.

2.AIDS intervention projects for the two criminalized groups of MSM and sex workers did begin to proliferate under NACO aegis. But, without changes in the criminal law the new visibility of these groups only increased their victimization by the police, and this repression went unchallenged by NACO. Moreover they were without social movement allies, since there was no political .support from civil society.

3.The legal sentence and social condemnation derived from article 377 increases the possibility of the spread of the HIV/AIDS and forces millions of people into hiding without necessary information and suitable healthcare.

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