Section 377 of Indian Penal Code- A Repressive Burden

Published on 12 Jul 2016 by Team

The world's largest democracy stands proudly upon pillars of equality and fundamental rights guaranteed to all by The Constitution. However, what lies beyond this is a reality that the Indian society is struggling with a grey space between traditions and modernity. Article 377 is an example of such a provision that presently not only serves as a tool for invading the privacy of the individuals but also degrades their dignity by declaring their most intimate feelings and emotions - unnatural or better yet illegal.

Article 377

According to Article 377, under the Indian Penal Code (IPC), unnatural offences state that "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or imprisonment of either description for term which may extend to ten years, and also shall be liable to fine."

This provision is older than 150 years and was introduced in the IPC by Lord Thomas Macaulay dating back to 1860. It is essential to note that this provision, implemented by the British was passed "undemocratically" in accordance to what they thought was against moral lapses as a reflection of  "the British Judeo-Christian values of the time". Furthermore, these laws were passed without discussions or participation by any "native" population. This model law was a colonial attempt to set standards of behaviour used as a broad instrument of social control, both to reform the colonized and to protect the colonizers.

Homosexuality- Disease or Social Stigma?

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 the society. It is not a disease people get infected by, by watching or talking to homosexuals or engaging in sexual acts with them, people are born that way. This is not a mere opinion, neurobiologist Simon Levay’s 1991 Study on the Brains of 41 Cadavers proves it. A test was conducted on a group of homosexuals and a group of heterosexuals and it was found that a cluster of neurons in the brain were smaller in homosexuals which were the cause of their homosexuality. It is not a choice, it is innate. How and why should anybody be punished for something they are born with? Why should a human be stripped of his/her rights? This is just one law, there are various other Indian laws that leave people dumbstruck.

Colonial Imposition

Today, of more than 80 counties around the world which still criminalize consensual homosexual conduct between adult men and women, more than half were earlier colonies under the British Empire. It has proved to have started as an invaders' impositions-an alien framework to subdue subject populations-and have morphed over time into alleged mirrors of a supposedly original native moral sense. Their real impact has been traced in all such countries wherein individuals are singled out for legal retaliation, making them victims of other forms of abuse and violence. However, countries such as New Zealand (in1986), Australia (state by state), Hong Kong (in1990, pre-China return), and Fiji (High Court ruling 2005) have managed to leave it behind.

In India, Article 377 sets stone for discrimination and exploitation of such minority community of LGBT (Lesbians Gay Bisexual Transgender), forcing them live in fear and invisibility as a result of the given power to police and other authorities to arrest, blackmail and abuse, and often only in terms of suspicion or their appearance. The law's silence on consent translates into judges' indifference to the victim.  Another sinister effect has been to place the victims of such rape under the same legal stigma as people who engage in consensual homosexual acts- or as rapists. Sometimes, the people who have suffered sexual abuse have confronted criminal punishments themselves.

Religious Context 

Different religions have different opinions on the contentious issue of Homosexuality. We can see this clearly in the case of Hinduism’s complex and changing attitudes toward homosexuality. Same-sex attachments and desire were both known and generally tolerated in ancient and medieval India, as reflected in such sacred texts as the Kama Sutra and Krittivasa Ramayana. It was not until India came under British colonial rule—with its Christian assumptions about sex—that Section 377, the first Indian law banning “carnal intercourse against the order of nature,” was passed, in 1860. In the twentieth century, various Islamic revivalist movements, particularly within Sunni Islam, seeking to be traditional or authentic have tended to call for the death penalty for male homosexual acts. They claim this is the Islamic position. This obscures historical as well as contemporary differences of interpretation within Islam and across very different Muslim-majority countries. 

Rejectionism 

Rejectionism is a system of belief that entirely objects to the idea that homosexuals deserve equal rights. This belief is held by Judeo-Christian denominations that embrace a more fundamental, Biblical interpretation of sexuality, as well as many predominantly Islamic nations. Some countries and belief systems punish homosexuality by sentencing those caught engaging in homosexual practices to death or torture. These states of Yemen, Iran, Mauritania, Nigeria, Qatar, Saudi Arabia, Afghanistan, Somalia, Sudan, and the United Arab Emirates all have legislation that criminalizes homosexuality. Rejectionist philosophy widely varies among its proponents on its stance on sexual orientation is a choice. The religious sects and individuals that utilize prayer-based conversion to “cure” gay people of their affliction believe that homosexuality is a choice and that, with enough guidance, can be reversed.3 The rejectionist philosophy asserts that homosexuals can be forgiven by God only after sincere efforts to repent of the sin of their sexual orientation. 

Criminalization of Sexual Acts among Heterosexuals 

Article 377 also has implications for heterosexuals. For this section, penetration is sufficient to constitute carnal intercourse. The section also has various implications for heterosexuals. According to the meaning of the section if a man and a woman engage in sexual activities which are against the order of nature they will be punished with imprisonment for life and/or fines. This means that anal sex and oral sex are against the order of nature as they do not contribute to the process of reproduction. However, a lot of people engage in anal and oral sex behind the four walls of their homes and yet they go unpunished. No case so far has been registered against any heterosexual for engaging in sexual activities against the order of nature. Most people are unaware of the interpretation of this section and the implications on heterosexuals. This is a really old law introduced during the time when the British ruled India but times have changed, the concept of sex is no more as much of a taboo and progressive laws need acceptance.

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