WOMEN & THE LAW – An untenable provision November 27, 2006Posted by qmediawatch in English, Section 377, The Hindu.
WOMEN & THE LAW – An untenable provision
With Section 377 still being in force in India, homosexuals and other sexual minorities are being subject to needless harassment and abuse Section 377 of the Indian Penal Code has been in the news lately. This
is a provision which attempts to set normative stipulations of sexuality in a broad but powerful way. The section criminalises voluntary sexual intercourse between two adults, if such sexual intercourse is against “the order of nature”. The punishment for this “offence” is imprisonment for life or ten years with fine. This is a
good example of a law, which is capricious, unreliable and inherently capable of abuse. What is “the order of nature”? And by such yardstick, how extensive and subjective is the power in implementing this section?
This law was first passed in England in the 16th Century to criminalise homosexuality. It was adopted by the British for India,when the Indian Penal Code was enacted in 1860. The basis for distinguishing homosexuality from heterosexuality was the fact that homosexuality does not procreate. In England, this law was repealed in 1967. However, with the law still being in force in India, homosexuals and other sexual minorities have been and are being subject to needless harassment and abuse under this law, simply on account of the fact that they are not heterosexuals. Already burdened by social stigma, homosexuals in India are further isolated by apprehensions and
actual police harassment.
Examples of harassment are aplenty. A gay man was given shock therapy to “cure” him of his sexuality. The National Human Rights Commission did not take up his complaint citing Section 377. There is a fundamental problem with Section 377. This provision, unlike other criminal provisions, does not seek to criminalise harmful
or abusive sexual conduct. On the contrary, volition in the sexual activity is the basis for its criminality. Section 377 ends up treating voluntary sexual activity similarly with abusive and forced sexual activity.
The need for this law has been justified on two main grounds: one, to enable policing of immoral sexual activity; and two, to criminalise paedophilia or child sexual abuse. These arguments are untenable. Are not sexuality and consensual sexual relationships by their very nature a personal matter, and morals an issue only where there is abuse or force or harm in such relationship? What then justifies State interference in matters of intimacy between two consenting adults? As far as paedophilia is concerned, the Section by its very language excludes sexual activity with a child, and cannot be the basis for policing child sexual abuse. Besides, an issue as serious as child
sexual abuse needs and deserves a more serious treatment in law, and not just puritanical language about it being against “the order of nature”.
Many countries have de-criminalised homosexuality, and do not attempt to fetter feelings of intimacy or companionship. Many countries recognise marriages and relationships between same-sex partners.In India, in 2000, the 172nd report of the Law Commission of India recommended the repeal of Section 377. But the Government did not act on this recommendation. There is an appeal pending before the Supreme
Court against an order of the Delhi High Court, which dismissed a petition that sought the deletion of this provision as violating the human rights of homosexuals in India.
More recently, several eminent persons in India have signed a letter seeking its repeal or removal from the law. It is important that we join voices for repeal of this reprehensible law at the earliest.
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