Unnatural sex, be it oral or anal, will make you a criminal under Section 377
Decoding the effect of the criminalisation of Section 377 on society
SECTION 377 OF THE INDIAN PENAL CODE, 1860
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of life or with imprisonment of either description for a term which may extend up to ten years and shall also be liable for fine.
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. And the punishment, imprisonment for life or up to ten years, is non-bailable.
PERSPECTIVE: This law pertains to 1860, where the churches did not allow divorce or termination of pregnancy as that was the mindset of the legislature and the churches at that point in time (we were ruled by the British at that time).
DECODING/ INTERPRETING THE LAW:
CARNAL: To do with flesh or body
UNNATURAL: Any kind of sex other than the one done by a man and woman from the front is termed unnatural, i.e. both ‘Anal’ and ‘Oral’ sex are equally punishable as they are equally unnatural. This will make all gays, lesbians and most Indian men and women criminals.
IN LAW TO SECURE
SEXUAL HARASSMENT IN SOCIETY:
1) Women, whether wives or live-in partners, are protected against any kind of sexual abuse in the Domestic Violence Act. However, so far in India, marital rape is not a crime which means sexual relationship between a husband and wife post-marriage is an admitted position of law.
2) All forced sex is not allowed and the concerned victim is protected under the Sexual Abuse Act.
Delhi High Court had decriminalised the Section on the basis that every individual has a right to his or her sexual preference in a free democratic society, so long as it does not harm anybody.
Supreme Court has said that this law is in a document called the IPC and the laws are laid down by legislature, so they have sent it back to Parliament to define the law. They have not criminalised it. They have said that while the High Court may have given their views, it is not for judicial interpretation and should be decided only by the legislature.
RIGHT TO LIFE: Article 21 of the Constitution of Indiastates that every individual has the right to life, so far as he or she is not doing anything that is a disgrace to society or causing harm to anybody. That you have the right to live your life independently so far as it does not cause a nuisance to society. It also gives you the right to live your life with dignity.
EFFECTS OF CRIMINALISING SECTION 377 ON SOCIETY:
A REAL-LIFE INCIDENT:
Parents knew that their son was gay. They still married him off to avoid social embarrassment. This boy has sex with his newly-wed wife where she becomes pregnant and then the gay side of him takes prominence and he starts dating his male friend. She catches him red-handed.
1) Should a parent marry off a gay or lesbian child knowing fully well that they are ruining the life of another person to whom they are marrying their child to? Is it fair for the parents to get a gay or lesbian child married off just to save their own faces in society?
2) Can a spouse not blackmail his or her partner once they discover them to be bisexual? It will make all bisexual men and women criminals.
3) Technically, it can be argued that just like anal sex is unnatural, so is oral. Does that not make most men and women in India who have oral sex criminals?
4) The law is silent on the detection of who can be termed gays or lesbians? Do they need to be caught in the act? Can just an individual proclaiming that he is gay make him a criminal? The act is open to interpretation, the effect of which will be blackmailing, extortion and most commonly corruption.
ARGUMENT FOR IT TO
1) 7-13% of Indian adults are homosexual and indulge in this as a voluntary sexual preference.
2) Most Indian men and women indulge in oral sex that will make all of them criminals.
3) The current law makes the offence unbailable and can put them behind bars for life, but so long as it is a voluntary act based on an individual’s sexual preference and does not harm another person, is it not going too far to term them criminals?
4) It will lead to blackmailing and extortion by the police. People will do it behind closed doors as they will not have the courage to come out and admit to their ‘unnatural’ sexual preferences. That will add to health hazards.
5) It will lead to harassment by spouses and unmarried lovers on discovering their partners to be bisexual or on having oral sex.
6) It could lead to entrapment and sting operations against the politically powerful and the rich to blackmail them.
7) Above all, our Constitution allows for the right to life under Section 21. This section violates that basic right. In addition to the right to life, it also violates our fundamental rights to liberty, equality and privacy. Liberty because it comes in the way of individual choice, equality because it discriminates against a certain class of people, and privacy because it seeks to regulate what we do behind closed doors.
The only tests are: Is it non-consensual, and does it disturb public peace?