This article is in response to the article by journalist Surajit Dasgupta in his blog about the Delhi High Court ruling and the reaction of people to it, Gagging with Gay Abandon.
If we go through the whole article, we will find that the writer has treated this subject in the same way as majority of media has done. They have treated this ruling as an incident related to homosexuality, which is far from truth. This ruling has upheld the basic fact that freedom of individual is sacrosanct in democracy and state has no right to dictate the behavior of individual subject to art 21 and art 14 of Indian Constitution. State has been taking up quite forcibly the role of moral guardian of society and Delhi HC bench has put the matter in proper perspective. The perspective being that the responsibility of state is to govern the country based on constitution and not to act as moral guardians. Secondly, it has also put in question the validity of law(s) passed during British Era. The sections of judgement will be quoted in support of assertion made and further the implication of this in the broader context of society will be discussed.
First let us look at sec 377 with the eyes of the judges , I quote from the judgement -
HISTORY OF THE LEGISLATION (starting from Page 3 of 105 page ruling)
2. At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Acts of sodomy later became penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. Oral genital sexual acts were later removed from the definition of buggery in 1817. And in 1861, the death penalty for buggery was formally abolished in England and Wales.
However, sodomy or buggery remained as a crime "not to be mentioned by Christians."
3. Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. 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” and reads as follows:
377. 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 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.
JUDICIAL INTERPRETATION
4. The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section. In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”[page 286] It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices. In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.” In Calvin Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria. In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.
5. The English law was reformed in Britain by the Sexual Offences Act, 1967, which de-criminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct.
======== End of quote ===============If we go through the whole article, we will find that the writer has treated this subject in the same way as majority of media has done. They have treated this ruling as an incident related to homosexuality, which is far from truth. This ruling has upheld the basic fact that freedom of individual is sacrosanct in democracy and state has no right to dictate the behavior of individual subject to art 21 and art 14 of Indian Constitution. State has been taking up quite forcibly the role of moral guardian of society and Delhi HC bench has put the matter in proper perspective. The perspective being that the responsibility of state is to govern the country based on constitution and not to act as moral guardians. Secondly, it has also put in question the validity of law(s) passed during British Era. The sections of judgement will be quoted in support of assertion made and further the implication of this in the broader context of society will be discussed.
First let us look at sec 377 with the eyes of the judges , I quote from the judgement -
HISTORY OF THE LEGISLATION (starting from Page 3 of 105 page ruling)
2. At the core of the controversy involved here is the penal provision Section 377 IPC which criminalizes sex other than heterosexual penile-vaginal. The legislative history of the subject indicates that the first records of sodomy as a crime at Common Law in England were chronicled in the Fleta, 1290, and later in the Britton, 1300. Both texts prescribed that sodomites should be burnt alive. Acts of sodomy later became penalized by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. Oral genital sexual acts were later removed from the definition of buggery in 1817. And in 1861, the death penalty for buggery was formally abolished in England and Wales.
However, sodomy or buggery remained as a crime "not to be mentioned by Christians."
3. Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. 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” and reads as follows:
377. 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 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.
JUDICIAL INTERPRETATION
4. The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section. In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”[page 286] It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices. In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.” In Calvin Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria. In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.
5. The English law was reformed in Britain by the Sexual Offences Act, 1967, which de-criminalised homosexuality and acts of sodomy between consenting adults (above age of 21) pursuant to the report of Wolfenden Committee. The Committee advising the Parliament had recommended in 1957 repeal of laws punishing homosexual conduct.
If we go through above, it is clear that in 5 cases in which this section was used all involved ORAL Sex and not sodomy. That goes on to prove that if we ignore the Delhi HC order then the heterosexual population which indulges in oral sex has to be put behind bars for life. It does not matter that they are not homosexuals as the point of contention here is not sexual preference but sexual practice.
Further, if we take a closer look, then it becomes clear that this section appeared in our law books because we were ruled by British at that time and they sought to impose their own religio-cultural values on us, the slaves. In Indian history, we do not find a single legal instance, in any of the scriptures, where a person has been put on trial because of their sexual preferences/practices.
With the passage of time, when the rulers (British) were kicked out or left on their own (depending on your own interpretation) and went back to their country, the laws promulgated by them remained active in India because we inherited a political elite, educated in Britain, which to quote N.C. Chaudhuri, was more british than british themselves. They kept the law of conquerors alive in India when the same law has been repealed in the land of conquerors themselves.
Let us take a look at the judgement itself, so that we can discuss the scenario with the same perspective as the honorable judges, who upheld the rights of citizenry.
There were 8 parties in this case, but main battle of arguements was fought by Naz foundation and ministry of Health on one side and Ministry of Home Affairs (MHA) opposing them. Rest of the respondents/petitioners followed one or another bassed on their stance. GOI was represented by MHA for whom arguements were placed by ASG of India after Ministry of Health sided with NAZ foundation.
The petition was first moved in front of Delhi HC in 2001 when it rejected by the Court in 2004 on the ground that there was no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation. The Supreme Court vide order dated 03.02.2006 in Civil Appeal No.952/2006 set aside the said order of Delhi HC observing that the matter does require consideration and is not of a nature which could have been dismissed on the aforesaid ground. The matter was remitted to Delhi High Court for fresh decision.
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