Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code and the Criminalization of Homosexuality in India

Unlike in a number of other countries, the controversy surrounding the legality of homosexuality in India is primarily a story of judicial interpretation. While some countries have clear laws which say things like “Being homosexual is illegal” or “engaging in homosexual behavior is a punishable offence”, Indian statutes lay down no absolute diktat of that sort. Instead, it is the judiciary, which has, over the last 153 years, interpreted a fairly vague provision of the Indian Penal Code to proclaim the same.
While some countries have clear laws which say things like “Being homosexual is illegal” or “engaging in homosexual behavior is a punishable offence”, Indian statutes lay down no absolute diktat of that sort.
The story of how homosexuality came to be penalized goes thus:

Many years ago, there existed a landmass with a large degree of plurality of belief, culture, habits, food, custom and sexuality. The region was generally tolerant of most differences; and literary, religious and other historic sources of that time seem to suggest that homosexuality was quite an inherent part of its society. While some people may have, at particular periods of time, been unhappy with the practice, homosexual behaviour was not considered a great crime (even petty theft was punished more severely than it). Many years later, this region was invaded by a foreign power and in the year 1857, it came under the sovereign control of a country called England. Now, soon after the English Queen became the sovereign of this region (now called India), she wanted to introduce a new Criminal Law in her own country. She really wanted to experiment with it somewhere else first, to infer its chances of success and so, she decided that ‘India’ would be a laboratory for testing this new penal code. It must be noted here, that England had a fairly conservative society with strange notions of Propriety and Morality. Their penal code would need to have provisions punishing Immorality. In their scheme of things homosexuality was indeed very Improper and Immoral. Thus, the new Indian Penal Code of 1860 drafted by a very Proper man called Macaulay contained a provision (Section 377) which said that “<i>Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished …</i>”.

The meaning of “<i>Carnal Intercourse against the Course of Nature</i>” has since 1860 been subject to a lot of judicial interpretation and confusion. While it is generally agreed that incidents like those where a man has intercourse with the nostrils of a bullock are indeed ‘<i>against the course of nature</i>’, there has been considerable judicial confusion over the exact scope of the phrase. Eventually, several decisions and cases later, it was decided by several Indian and English judges (mostly the latter) that any kind of Sexual Intercourse which did not amount to <i>‘peno-vaginal penetrative intercourse</i>’ was Against the Course of Nature. Consequently anal, oral, and other kinds of intercourse between any two consenting individuals were held to be ‘Unnatural Offences’ under this provision. [This obviously was an English way of seeing things, but over the years, the Colonial Masters had impacted Indian society so much, that most people forgot what their culture had been before they had become an English Colony. They believed their culture to only be that which the English Historians told them it was, and they believed the “<i>Order of Nature</i>” to be just what the British told them it was].

Luckily, in 1950 India got its own Constitution, which guaranteed to all people the Fundamental Rights to Equality and Life. Article 15 of the Constitution ensures that no citizen should be discriminated against on grounds of “<i>religion, race, caste, sex, place of birth or any of them</i>” and Article 21 guarantees to all citizens the Right to Life and Personal Liberty, which can only be taken away by a just, fair and reasonable procedure, clearly established by law. The Right to Privacy has repeatedly been held to be a part of the Right to Personal Liberty.

In 2009, the interpretation of the said Section 377 was challenged on grounds that it violated these two provisions of the Constitution. The High Court at Delhi, then, in the celebrated judgement of <i>Naz Foundation </i>v. <i>National Capital Territory of Delhi</i> held that criminalizing homosexuality did indeed result in discrimination against people on grounds of their Sexual Orientation. The judges read the term ‘sex’ in article 15 of the Constitution to include ‘Sexual Orientation”, and observed that the Constitution prohibited such discrimination. They also looked upon homosexual activity, when performed consensually and within closed quarters to be within the folds of privacy of individuals, which could not be interfered with in an unreasonable and unfair manner as was being done under the section. This is especially true in light of the fact that most Police Officers use the threat of this section to extort money from homosexuals and <i>hijras </i>and harass them in other unacceptable ways. In pursuance of this, the High Court read down Section 377 of the Indian Penal Code to not include Private acts of Consensual Homosexual Behavior. The High Court at Delhi also recognized that Homosexuality was indeed not alien to Indian culture and Indian aversion to the same was a result of a Victorian sense of Morality imposed on them by many years of Colonial Rule.

Yet, the notion that homosexuality is alien to our culture remains commonly believed and as a people, we continue to be highly intolerant of those inclinations and choices which do not confirm to those of the mainstream. Pressure groups and Orthodox Organizations therefore appealed against this decision at the Supreme Court, whose decision on this matter is still pending.

While there has been no clear mobilization to this end, it would indeed be refreshing and relieving if Parliament would prevent further judicial legislation in this field, and instead, amend the Indian Penal Code to clarify that engaging in Private Consensual Homosexual Behaviour is not a punishable offence. That way, we could start concentrating on legalizing Homosexual Marriage (yet another of those things which were quite prevalent in pre-colonial India!).




About Jinal Dadiya

Jinal Dadiya