Section 377 of the IPC (Indian Penal Code) is an archaic law, introduced by the British during 1860, which criminalises certain sexual acts describing them as “unnatural offences”. This involves sexual acts between consenting adults (both homosexual and heterosexual adults), even within the privacy of their rooms.
All About Article 377
A brief history of Section 377
This law gathered much controversy and media coverage after a PIL was filed by Naz Foundation against this section in Delhi High Court. The Court, in a landmark judgement, overturned the 150-year-old section in 2009. However, the success was short-lived. Hearing on a batch of appeals filed against the High Court verdict, the Supreme Court in 2013 reversed the previous verdict.
Section 377 IPC is contained in Chapter XVI of the IPC titled “Of Offences Affecting the Human Body”. Within this Chapter Section 377, IPC is categorised under the sub-chapter titled “Of Unnatural Offences”.
What does it mean and what does it not mean?
- Section 377 has been interpreted by the courts to cover anal sex, oral sex and penetration of other orifices, in various cases.
- All sex other than heterosexual penile-vaginal is criminally penalizable.
- Consent is no defence to an offence user Section 377.
- The section makes no distinction regarding age.
- Contrary to the common belief, this section does not criminalise homosexual behaviour or tendency (people feeling romantically or sexually attracted toward the same sex) per se. Rather, it criminalises certain sexual acts, irrespective of the sexual orientation of the offender involved.
- However, it was noted by Delhi High Court in its judgement, that this section, in its operation, unfairly targets the homosexual community and views them as criminals.
- The court also noted that Section 377 “was based on a conception of sexual morality specific to Victorian-era drawing on notions of carnality and sinfulness” and that it was not enacted “keeping in mind instances of child sexual abuse or to fill the lacuna in a rape law”.
- Section 377 IPC is a non-bailable offence.
- CRIMINALISATION OF HOMOSEXUALITY
- There are a lot of people who see homosexuality as a crime and a disease which can be treated. However, these are those people that are prohibiting the progressive laws to enter society.
- Homosexuality is a person’s sexual preference and not a disease, just because heterosexuality is “common” does not mean it is a norm and homosexuals violate it.
- Sec 377 enumerates that – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
- Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
What does the law say?
Section 377 of the Indian Penal code makes carnal intercourse, or any non-procreative sexual act between a man and a woman illegal, punishable with up to 10 years in jail and/or a fine.
Section 377 is a part of IPC [Indian Penal Code] that criminalises acts against the order of nature; something which not only includes homosexual sex but also anal sex [and even oral sex] between straight and consenting couples.
So, if you have ever given [or received for that matter] a blowjob, you are a criminal in the eyes of the law and can be charged for it.
Fortunately, no matter how nosy us Indians are, sex remains a taboo in our society. Thus, most people pretend that they don’t know about [or see] such acts and keep to themselves.
This results in rare usage of this section and even when it is used, it is used against paedophiles because, apparently, gay sex is more abhorrent than paedophilia and thus carries a much stricter sentence.
There is widespread support for the scrapping of Section 377 among the enlightened sections of Indian society, including eminent lawyers, jurists, renowned writers, political activists, journalists, doctors, actors, producers, directors, teachers, students etc.
This is the law in India that is infamous for having banned homosexual acts in public and in private, and whenever there is a debate on this section one of the favourite arguments of the side favouring a reading down or striking down of this Section is that the “order of nature” is no longer what it used to be way back in 1860.
Modi government in 2014 said that he will take a decision on Section 377 after the Supreme Court’s decision. Union Minister of State for Home Kiren Rijiju said in a written reply in the Lok Sabha that since the matter is still pending in the Supreme Court, the government will take a decision on the decision after the court’s verdict. After the Supreme Court’s decision, the NCRB started collecting data for the first time under Section 377 of the Criminal Procedure Code.
In 2017, Congress MP Shashi Tharoor brought the Indian Penal Code (Amendment) Bill for the change in section 377, but he could not get passed in the Lok Sabha. In accordance with the Supreme Court’s ruling on ‘Rights of Privilege’ in August 2017, sex-related tilt assumed the fundamental rights and also marked that ‘any gender-related leaning is the fundamental part of its right to privacy’.
In this judgment it was said that the Défense of ‘Right to privacy and sexual inclination’ is in the origin of Section 14, 15 and 21 of the Constitution, ensuring the fundamental right. ‘
- What is your Opinion?
- I hope it should be in favour of Homosexuality?