377 IPC | Still a long way to go

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Author: Syed Atif

Introduction
The Indian Penal Code, 1860[1] (hereinafter, ‘the IPC’) is the principal legislation
governing substantive criminal laws in India. Various provisions are enlisted under the
Code. One such law was Section 377[2].

The provision that has been in debate for quite a long was a colonial law. It was criticised
for various reasons and the judiciary had been nudged many times to deliberate upon
the constitutionality of the law.

Recently, in Navtej Singh Johar v. Union of India[3], a Bench of the Honourable Supreme
Court of India, headed by the former Chief Justice of India, Honourable J. Dipak Misra,
read down the colonial law which hampered the sexual freedom of homosexuals and
the LGBTQ community in this country.

Rape is forceful sexual intercourse, without the victim’s consent and against its will. Thus,
gender should not be criteria to invoke the culpability for the offence.

Sadly, gender is a consideration and only a male can be booked for committing rape on a
woman. A man cannot be booked for doing so on a man and a woman cannot be booked
for doing so on a man or another woman. Hence, the definition presumed for the
purpose of considering rape as an offence is quite narrow and grossly unjust.

Section 377 and Homosexuality

Sexual orientation varies from individual to individual. A general line can never be drawn.
It’s not always that a man is attracted to a woman or a woman is attracted to a man.
When Michael Kirby, a former judge of the High Court of Australia and a former
President of the International Commission of Jurists, delivered the 2013 Tagore Law
Lectures, his theme was ‘Sexual Orientation and Gender Identity – a new province of law
for India’. In 1999, J. Kirby had publically shared with the world that he was homosexual.

Homosexuality though attracts a unique sexual orientation but is definitely not an

offence. While most religions condemn homosexuality explicitly, a secular country is not
expected to be driven by religious bindings while making secular laws. The UDHR
adopted on December 10, 1948 states that “All human beings are born free and equal in
dignity and rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood”. December 10 is celebrated as Human
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Rights Day. Ironically, on December 11, 2013, a liberating and internationally acclaimed
judgment of Delhi High Court was reversed by the Supreme Court after 4 years. The
judgment by the Delhi High Court delivered on 2nd July, 2009, though welcomed by the
public at large, was much criticized by the legal fraternity, claiming that it was unlawful
by virtue of Section 377 of the IPC. The Supreme Court on appeal reversed the decision
saying that it was against the provision under the IPC. The public and the media were all
out in the open criticizing the Apex court without looking into the fact that it is the law
which is defunct and the judiciary is not at fault. The much-debated provision under the
IPC is 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 [4][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.”

Section 377 was the only law in India that per se dealt with or somewhat touched the
concept of homosexuality. Unlike rape, Section 377 did not talk about ‘force’ and/or
‘coercion’ and hence even consensual sexual intercourse ‘against the order of nature’
was punishable under Section 377. This provision punished homosexuality ipso facto.
Thus, the blame is to be put on the legislature and not the judiciary for such a bias
provision in law.

After the judgment, there seems to be a lack of clarity on various issues. For example, the
question of whether the decision allows people to engage in acts of sodomy, which
includes coitus per os (mouth contact with male genitals) and cunnilinctus (mouth contact
with female genitalia), and similar forms of sexual activities remains ambiguously
answered.

The provision prohibited carnal intercourse against the order of nature with any man,
woman or animal. Hence, it was a much wider law than it was presented. Homosexuality
was not the only thing that was covered by it.

Section 377 was a colonial law. However, the blame can certainly be put on the
legislature of India for turning a blind eye to this bias law for so many years after
independence.

The term ‘against the order of nature ’ was not defined. Over the years, Courts have
interpreted the term so widely, that it included every act except the ones which resulted
in procreation.[5]

A cardinal principle which the Court discussed is that of autonomy. This means that an
individual has sovereignty over his or her own body. He or she can surrender his or her
autonomy wilfully to another individual and their relation is a matter of their privacy.[6]
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Hence, since a person is allowed to surrender his autonomy by free will in a private
setup, they should also be allowed to engage in a sexual activity of their own choice.

The lack of explicit mention by the court leaves a room for ambiguity.

The former Chief Justice of India Honourable Justice Dipak Misra, and Honourable
Justice A.M. Khanwilkar held:

“The overarching ideals of individual autonomy and liberty, equality for all sans
discrimination of any kind, recognition of identity with dignity and privacy of human
beings constitute the cardinal four corners of our monumental Constitution forming the
concrete substratum of our fundamental rights that has eluded certain sections of our
society who are still living in the bondage of dogmatic social norms, prejudiced notions,
rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity
seclusion and isolation from the social mainstream are still the stark realities faced by
individuals today and it is only when each and every individual is liberated from the
shackles of such bondage and is able to work towards full development of his/her
personality that we can call ourselves a truly free society.”

But then the court in its final verdict states that Section 377 in so far as it prohibits
‘consensual sexual relationship’ is unconstitutional. This would logically mean any such
possible sexual activities which are consensual barring those performed on animals.
There exist other instances in the judgment as well. For instance, Justice Chandrachud
referred to acts of sexual activities sans procreation as a manifestation of basic human
urges.

The issue with Section 377 was not of homosexuality alone. Though the judgment in its
wisdom has tried to uphold the principle of liberty as enshrined under the Constitution
to the best of its possibility, however, it can be understood that even the judiciary can’t
do much in reading down or interpreting a law if the law itself is so biased and blind.

Section 377, after this judgment, now finds a place in the category of provisions like
Section 375 and hence, the same problem that exists with Section 375 accrue now on
Section 377, as well.

Consent
Consent is not the be-all and end-all of sexual offences; sometimes consent is given
under duress; at times it is given under misconception; sometimes it is consented to
because not doing so has enormous social and economic ramifications for the victim,
and so on. The lack of resistance and even the presence of overt consent do not always
indicate that forceful sexual relations weren’t established. This consent is a tricky part of
the offence; but what we do unequivocally know that sexual relations established

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without consent are punishable. However, consent is not the only ingredient of the
offence. Consent is quite subjective. For instance, it becomes difficult to deliberate
whether homosexual rape can be brushed under the carpet of “unnatural sex”.

This issue of consent remains unresolved even after this judgment.

Male rapes
Even in 2018 and despite so many landmark judgments coming daily, male rapes are still
not punishable.

The Preamble[7] is the soul of the Indian Constitution. Among other things, it talks about
equality as well. Article 14 to the Constitution enlists the Right to Equality.[8]

Indian law does not give a literal interpretation to the word ‘equality’. Many cases have
been decided by the Indian judiciary to give an effective definition of the term equality. In
E.P. Royappa v. State of Tamil Nadu[9], Honourable Justice P. N. Bhagwati held and I
quote,

“Equality is a dynamic concept with many aspects and dimensions and it cannot be
“cribbed cabined and confined” within traditional and doctrinaire limits.”[10]

However, the whole concept of giving such an interpretation to the term ‘equality’ is to
widen its ambit and to give it a positive effect in practice.

Rape law under the Indian penal code is a clear violation of the principle of equality. The
only provision which somewhat protected men from forceful sexual violence now stands
deleted and hence, men today have no recourse left whatsoever to seek protection from
such sexual violence.

Male rapes exist and are a reality today though the mainstream legal luminaries are not
willing to accept this fact. However, statistics speak differently. The National Intimate
Partner and Sexual Violence Survey, 2010 is a telephonic survey that measures the
magnitude of sexual and other violence among adult men and women in the United
States. It found that one in every seventy-one men (1.4 per cent) have been raped once
in their lifetime. It is an estimated 1.5 million men which is a huge number. The figures
include oral or anal penetration by a male using his penis. It also includes anal
penetration by a male or a female using their fingers or an object.

The Bureau of Justice Statistics’ National Crime Victimization Survey found that 11 per
cent of the total sexual assault victims are male.[11] A 2007 study of the Bureau of Justice
Statistics survey found that 4.5 per cent of the nation’s state and federal prisoners
experienced sexual victimization in only a one year period.[12]

India is no different and the current situation considering the gravity of punishment for
rape in India post the 2013 amendment has only worsened the situation, keeping the
narrow and bias definition for rape intact. Ideally, India would be able to provide its own
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numbers of statistical comparison. However, given than rape by legal definition itself
cannot be committed on a man, there is no good way of determining how the male
survivors exist in India. Of lately, the Delhi-based Centre for Civil Society found that
approximately 18 per cent of Indian adult men surveyed reported being coerced or
forced to have sex. Of those, a massive 16 per cent claimed a female perpetrator while
the rest 2 per cent claimed a male perpetrator.[13]

The only recourse, if any that existed was Section 377 which also, after the Navtej Singh
Johar judgment stands deleted, thereby leaving no legal remedy for an adult male victim
of sexual violence in India.

Another argument raised is that female rape survivors in the Indian society which
presses so much on female virginity are looked down upon. However, though not on the
same line, but there are burdens placed on male survivors as well, such as being
perceived as effeminate, which will not be felt by a female survivor as their pain is
different, neither being less grave or less tormenting.

But, almost all crimes affect different types of victims in different ways. However,
prosecution is done on the sameness of the crime and not on the sameness of the
effect. A murderer of a woman and a murderer of a man both will be prosecuted under
Section 302 of the Indian Penal Code. But, sadly, we cannot say the same for male rapes
and Section 376, rape.

Marriage between same-sex couples

The judgment in discussion has failed to realise the after effects of legitimising
homosexual relations.

Marriage is a recognised institution in India. Indian culture gives huge respect to this
institution. As Dr. S. Radhakrishnan observes, “Marriage is not a mere convention but an
implicit condition of human society….. It is an adjustment between the biological purposes of
nature and the sociological purposes of man…. It is an institution, it is a device for the
expression and development of love.”[14] It is closely connected with the institution of
family.

Marriage is an institution of society which can have very different implications in different
cultures. Its purpose and forms may differ from one society to the other, but it exists
everywhere. It is the very foundation of a civil society, as regarded by all religions
uniformly. Family is the most significant unit of society and marriage is its foundation.
Both have a long history of their own.

Among Hindu social heritage, marriage has never been looked at from the materialistic
point of view. The Rigveda itself speaks of the sanctity of the institution of marriage.[15]
Ever since, the institution of marriage has attained social and religious sanction. It is a
matter of religious duty for Hindus. Hindu shastrakaras have prescribed that girls should
marry as soon as they attain marriageable age. A girl who continues to stay in her
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father’s home more than three years after attaining puberty, is called a “Vrishala” or a
“sudra”, that is a very low type, and the father or the guardian of such a girl is said to be
incurring a great sin.

As per Islam, marriage is considered a contract but yet enjoys a high sanctity. When a
Muslim marries, he or she is said to have completed half of its deen (religion). Some of
the relevant verses from the Holy Quran are:

“And marry those among you who are single (i.e. a man who has no wife and the woman
who has no husband) and (also marry) the Salihun (pious, fit and capable ones) of your
(male) slaves and maid-servants (female slaves). If they be poor, Allah will enrich them
out of His Bounty. And Allah is All-Sufficient for his creatures’ needs, All-Knowing
(about the state of the people).”[16]

“And among His Signs is that He created for you wives from among yourselves, that you
may find repose in them, and He has put between you affection and mercy. Verily, in that
are indeed signs for a people who reflect.”[17]

“….(Lawful to you in marriage) are chaste women from the believers and chaste women
from those who were given the Scriptures (Jews and Christians) before your time when
you have given them due Mahr (bridal-money given by the husband to his wife at the
time of marriage), desiring chastity (i.e. taking them in legal wedlock) not committing
illegal sexual intercourse….”[18]

Hence, marriage is considered not only a respectable but a sacred institution in all
religions. Thus, breaching the sanctity of the institution is a great sin and probably that is
the reason why the Indian law, which gives immense respect to religious communities,
punishes offenders for breaching the sanctity of the institution of marriage.

Legal obligations under various personal laws are stated for both husband and wife
since marriage is a matter of personal law in India. However, nowhere has it been stated
as to under what law or what kind of legal obligations bind homosexual couples living
together.

The Supreme Court had ruled in 2015 that if an unmarried couple is living together as
husband and wife, then they would be presumed to be lawfully married. A Bench of
Justice M Y Eqbal and Justice Amitava Roy said continuous cohabitation of a couple
would raise the presumption of a valid marriage.[19]

The Court held:

“15. It is well settled that the law presumes in favour of marriage and against
concubinage, when a man and woman have cohabited continuously for a long time.”[20]

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The 2015 judgment and the judgment in Navtej Jauhar now puts the law agencies,
legislature and judiciary in a dilemma as to how will a same sex couple, married or even
living together, be bound by the marital obligations as in case of other marriages or live-
in relations. That is to say, as to who will play what role and who can be held accountable
for not fulfilling what marital obligations are questions that remain unanswered.

Section 125[21] of the Code of Criminal Procedure, 1973, puts an obligation on a man to
maintain his wife, children and parents. However, it is still unclear as to whether Section
125 will extend even to same-sex couples as well since the judgment doesn’t speak
about it and also the provision under the law makes no mention of it. This is another
criticism of the judgment.

Adoption
The law of adoption in India, again, varies from one religion to the other as it is governed
by personal laws and every religion has its own personal law.

However, unanimously it is agreed upon that adoption can be done by anybody,

including married couples. However, no such provision is made allowing same-sex
couples to take a child in adoption.

Though the judiciary can intervene anytime and allow such a couple to take a child in
adoption since such relations are perfectly legal now, not having a legislation or law to
that effect, in place, can certainly and in all possibilities lead to issues and frivolous
litigation before the courts. This could have been resolved by the judgment itself,
however, the Apex court failed to do so.

Religion
Article 25 to 28 of the Indian Constitution guarantee to every citizen the freedom to
profess a religion of one’s choice.

India is a land of many religions and communities. Though there are various
fundamental differences among religions, on some topics they agree unanimously.
Homosexuality is one of them.

All the religions unanimously condemn homosexuality and oppose it. However, after
legitimizing homosexual relations, it now becomes a part of right to life and personal
liberty of homosexual couples, protected under Article 21. Here arises the conflict
between fundamental rights enshrined under the Constitution. This again shall lead to
chaos in the society and frivolous litigation before the courts.

Conclusion

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Navtej Johar was a landmark verdict in the fight for emancipation of the rights of
homosexuals in the country. However, there is a long way to go. Though homosexual
couples have now been recognized by the law, the question as to their other rights and
legal obligations still remain to be answered and be deliberated upon. It shall be the duty
of both the legislature and the judiciary to work in that direction and resolve all such
issues that shall now arise.

[1] The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).

[2] 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.

[3] W.P.(Cr.) No. 76 of 2016.

[4] Subs. By Act 26 of 1955, sec. 177 and Sch., for “transportation of life” (w.e.f. 1-1-1956).

[5] Khanu v. Emperor, AIR 1925 Sind 268; Khandu v. Emperor, AIR 1934 Lah. 261; Lohana
Vasantlal Devchand and Ors. v. State, AIR 1968 Guj 252.

[6] Supra Note 4.

[7] We, the People of India, having solemnly resolved to constitute India into a [Sovereign
Socialist Secular Democratic Republic] and to secure to all its citizens:

Justice, social, economic and political;

Liberty of thought, expression, belief, faith and worship;

Equality of status and of opportunity;

and to promote among them all

Fraternity assuring the dignity of the individual and the [unity and integrity of the
Nation];

In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby, adopt,
enact and give to ourselves this Constitution.

[8] Art. 14.- The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.

[9] AIR 1974 SC 555.

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[10] Id.

[11] National Crime Victimization Survey, United States Department of Justice, Criminal
Victimization 1999.

[12] Allen Beck and M. P. Harrisson, Sexual Victimization in State and Federal Prisons
reported by inmates 2 (U.S. Dept. of Justice, Pub. No.: NCJ221946, 2007).

[13] available at: http://ccs.in/indias-law-should-recognise-men-can-be-raped-too (last

visited on July 22, 2016).

[14] Dr. S. Radhakrishnan, Religion and Society (1956).

[15] Rig Veda, Hymn XXXII, Verse 3 (English Translation by R.T. Griffith).

[16] The Holy Quran, Surah An-Nur, Ch. 24, Verse 32 (Dr. Muhammad Muhsin Khan,
Translation of the meanings of The Noble Qur’an in the English Language (King Fahd
Complex, Madinah, KSA)).

[17] The Holy Quran, Surah Ar-Rum, Ch. 30, Verse 21 (Dr. Muhammad Muhsin Khan,
Translation of the meanings of The Noble Qur’an in the English Language (King Fahd
Complex, Madinah, KSA)).

[18] The Holy Quran, Surah Al-Ma’idah, Ch. 5, Verse 5 (Dr. Muhammad Muhsin Khan,
Translation of the meanings of The Noble Qur’an in the English Language (King Fahd
Complex, Madinah, KSA)).

[19] Commissioner, Sales Tax, U.P. … vs M/S. Bhagwan Das & Bros, Civil Appeal No. 3410
of 2007, decided on April 8th, 2015.

[20] Id.

[21] 125. Order for maintenance of wives, children and parents.—(1) If any person having
sufficient means neglects or refuses to maintain—

(a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain
itself, or

(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself,

a Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife or such child, father
or mother, at such monthly rate 1 * * * as such Magistrate thinks fit and to pay the same
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to such person as the Magistrate may from time to time direct:

Provided that the Magistrate may order the father of a minor female child referred to in
clause (b) to make such allowance, until she attains her majority, if the Magistrate is
satisfied that the husband of such minor female child, if married, is not possessed of
sufficient means:

[Provided further that the Magistrate may, during the pendency of the proceeding
regarding monthly allowance for the maintenance under this sub-section, order such
person to make a monthly allowance for the interim maintenance of his wife or such
child, father or mother, and the expenses of such proceeding which the Magistrate
considers reasonable, and to pay the same to such person as the Magistrate may from
time to time direct:

Provided also that an application for the monthly allowance for the interim maintenance
and expenses of proceeding under the second proviso shall, as far as possible, be
disposed of within sixty days from the date of the service of notice of the application to
such person.]

Explanation.—For the purposes of this Chapter,—

(a) ―minor‖ means a person who, under the provisions of the Indian Majority Act, 1875
(9 of 1875) is deemed not to have attained his majority;

(b) ―wife‖ includes a woman who has been divorced by, or has obtained a divorce from,
her husband and has not remarried.

[(2) Any such allowance for the maintenance or interim maintenance and expenses of
proceeding shall be payable from the date of the order, or, if so ordered, from the date
of the application for maintenance or interim maintenance and expenses of proceeding,
as the case may be.]

(3) If any person so ordered fails without sufficient cause to comply with the order, any
such Magistrate may, for every breach of the order, issue a warrant for levying the
amount due in the manner provided for levying fines, and may sentence such person,
for the whole or any part of each month‘s 4[allowance for the maintenance or the
interim maintenance and expenses of proceeding, as the case may be,] remaining
unpaid after the execution of the warrant, to imprisonment for a term which may extend
to one month or until payment if sooner made:

Provided that no warrant shall be issued for the recovery of any amount due under this
section unless application be made to the Court to levy such amount within a period of
one year from the date on which it became due:

Provided further that if such person offers to maintain his wife on condition of her living
with him, and she refuses to live with him, such Magistrate may consider any grounds of
refusal stated by her, and may make an order under this section notwithstanding such
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offer, if he is satisfied that there is just ground for so doing.

Explanation.—If a husband has contracted marriage with another woman or keeps a

mistress, it shall be considered to be just ground for his wife‘s refusal to live with him.

(4) No wife shall be entitled to receive an 1[allowance for the maintenance or the interim
maintenance and expenses of proceeding, as the case may be,] from her husband under
this section if she is living in adultery, or if, without any sufficient reason, she refuses to
live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section in
living in adultery, or that without sufficient reason she refuses to live with her husband,
or that they are living separately by mutual consent.

About the Author: Syed Atif is an advocate and practices in the Supreme Court of India.

Another article by the Author: Actus Reus & Mens Rea: the Inseparable Components
of Crime

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