Carnal knowledge,Constitution and Law procedure,Marriage law,Social justice
SECTION 377 of The Indian Penal Code-A REPRESSIVE BURDEN
11 Jul 2016  |  Views: 265  | 
Deepika Gill

SECTION 377 of The Indian Penal Code -Introduction

The world's largest democracy stands proud 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 being 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.

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.

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 on 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 the rapists. Sometimes, the people who have suffered sexual abuse have confronted criminal punishments themselves.


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