Section 377 of the 1860 Indian Penal Code is part of India’s colonial legacy. It criminalises homosexual acts using Victorian-era euphemism every bit as non-specific as the Biblical precepts it is supposedly in consonance with.
The city of Sodom, it is claimed, was destroyed by the God of the Old Testament because its inhabitants sinned by engaging in homosexual acts. The nature of the city’s sin, however, was not explicitly specified in the Bible and alternative interpretations suggest that worshiping false gods or being inhospitable may have led to the city’s destruction, as could a property dispute between Abraham and Lot, two Biblical figures who had divided the land between them.
Nonetheless, sodomy derives its name from the ill-fated city, and there is no doubt that the voluntary “carnal intercourse against the order of nature with any man, woman or animal” criminalised by Section 377 includes homosexual acts.
For years, it was understood that paedophilia could be countered using Section 377 and arguments were made to the effect that the provision should be retained for that reason. However, with the 2012 Protection of Children from Sexual Offences Act having come into force, that argument no longer holds.
Bestiality too can potentially be countered through special laws such as the 1960 Prevention of Cruelty to Animals Act, and its existence does not justify retaining Section 377 as has also been suggested at various times.
That, unfortunately, does not mean that simply striking the provision down would have no negative consequences.
Section 377 and marital rape
Indian law essentially considers rape to be a crime perpetrated by a man against a woman who is not his wife.
An explanation to Section 377 states: “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” Unlike the offence of rape, this provision against supposedly unnatural acts contains no marital exception. As a result, it has been possible to innovatively invoke it to proceed against husbands who subject their wives to penetrative non-consensual sexual acts which, it could be argued, are unnatural.
Section 377 thus, in some circumstances, can accord relief to wives whose husbands rape them. Along with a 2017 Supreme Court ruling, which essentially held that sex with one’s wife is rape if she is less than 18 years old, this innovation forms the basis of judicial intervention which dilutes the marital rape exception enshrined in criminal law in India. If the provision were to be struck down in its entirety – the Supreme Court is currently hearing arguments on a batch of petitions that demand amendments to Section 377 – it would obviously not be possible for raped wives to invoke it under any circumstances.
Redressal for men?
In addition to this, considering that the definition of rape in the Indian Penal Code is not gender-neutral, if Section 377 were to be simply struck down, it could potentially leave those who are raped with even less in the way of adequate redress in criminal law. Only a woman can invoke Section 375 of the Indian Penal Code, which defines the offence of rape, and a woman too cannot generally invoke it unless she is raped by a man who is not her husband.
If one were to consider the structure of the law as it now stands, what would emerge is the legal articulation of a traditional Judeo-Christian worldview in which women are men’s chattel meant to procreate, and any sexual activity either considered illegitimate or non-procreative is frowned upon. It is a worldview that is easily grafted onto traditional Indian thought.
Even though the human body has not been necessarily associated with shame in the Indian subcontinent, and even though the wonders of procreative sex to the exclusion of all else have not been aggressively promoted, traditional Indian society is deeply patriarchal. And, so, accepting colonial law, with its inbuilt understanding of sexual acts by men with women whom they would once have been considered to govern, has never been particularly difficult.
Such an understanding is, however, completely out of consonance with contemporary understandings of individual autonomy and agency. There can be no valid justification whatsoever for criminalising any consensual sexual act between consenting adults which does not cause grievous physical harm or death.
That said, there are those who would suffer if Section 377 were completely struck down. It would therefore probably be prudent to read the provision down so that only those who voluntarily engage in “unnatural” acts without the consent of their partners can be targetted by it.
Having sexual offence law adequately recognise individual rights regardless of gender would require significant legal amendments, which are unlikely to see the light of day within the lifetime of most adults now alive. In the meantime, the least we should aim to do is ensure that tinkering with the law causes as little harm and as much good as is possible.
Nandita Saikia is a media and technology lawyer in Delhi.