15 April 2015

Demystifying Section 377 of the Indian Penal Code #3 Myth Buster

Authored by Soumyadeep Bera

The propaganda concerning the constitutionality of Section 377[1] of the Indian Penal Code evoked a great sense of despair and upheaval amongst the LGBT community and the Indian youth. The constant protests in the capital and elsewhere led mostly by students demanded equitable treatment guaranteed by the Fundamental Rights regardless of sex, caste, creed, and class. The broader and perhaps more rudimental objective was to promote a progressionist agenda, soliciting the acceptance of homosexuals and transgenders into the Indian Society. Thus the Supreme Court’s judgment reinstating Section 377 was obscured by the tidal surge of varied interpretations made by eminent lawyers, media and political parties. It also led to popular misconception classifying homosexuals as criminals.       

But section 377 is in itself; unequivocal and the scope is not merely restricted to the members of the LGBT community and on the contrary, it has legal ramifications on consenting heterosexual couples. The section was envisaged to reprimand the act of coitus performed through ‘unconventional’ methods (to sexually discipline the erotically perverse colonial subjects in 1860[2]) and particularly “unnatural offences”, which include voluntary “carnal intercourse” against the “order of nature” with any man, woman or animal.
Carnal intercourse can be construed as anal sex, oral sex and other forms of penetrative sexual acts[3]. The very existence of Section 377 has stymied the opportunities of same-sex desiring individuals and their shot at a dignified life albeit the fact that the aforementioned section is rarely used in court judgments.

It is imperative, to say the least, that Section 377 and it’s causal link with homophobia must be isolated. This has created a misconception regarding the marginalization of the LGBT community vis-à-vis section 377. Even the language in the statute ‘against the order of nature’ does not thrust upon criminalization of certain sexual subjects but rather sexual practices. The judicial understanding of Section 377 does not legitimize/empower the state to harass individuals having an alternate sexual identity.

The commentary attached to section 377 illustrates that the section is the only mechanism to protect victims of sodomy, buggery and bestiality. The Supreme Court in its judgment, defending the constitutionality of Section 377 stated, “It is relevant to mention here that Section 377 does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed constitute an offence. Such a prohibition regulates conduct regardless of gender identity and orientation”[4].

 Therefore there is no legal reason to ostracize individuals with alternate sexual orientation or third gender.  

[1] Section 377 of The Indian Penal Code, 1860 states that, “Unnatural offences. —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”.
[2] Zaid Al Baset, Section 377 and the Myth of Heterosexuality, 4 Jindal Global Law Review 1, 1-21, 2012
[3] Alok Gupta, Section 377 and the Dignity of Homosexuals, XLI (46) Economic & Political Weekly (November 18th, 2006).
[4] Suresh Kumar Koushal and another v. NAZ Foundation and others, Civil Appeal No.10972 of 2013, India: Supreme Court, 11 December 2013, available at: http://www.refworld.org/docid/535626384.html [accessed 14 April 2015]

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