Section 377 of the IPC will now be applicable only in cases of “non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”, Home Ministry officials said after Thursday’s order. The Centre will ask state governments to inform law enforcement agencies not to treat consensual sex among individuals of the same sex in private as a crime.
The decriminalisation of consensual gay sex will help stop the harassment of the LGBTQI community by police, officials said. “At times they are subjected to violence, blackmail, intimidation and entrapment. The reluctance of homosexual men to report rape or other crimes for fear of adverse legal implications has psychological effects,” said an official.
Several police officers said the judgment has opened up grey areas, and guidelines will be needed to deal with cases where, say, a gay individual withdraws “consent” and lodges a complaint against their partner. India’s laws on sexual assault do not recognise men as victims of rape. “Police will now have to establish the principle of consent. In cases of rape, the principle of consent is well defined, but in same-sex relationships, law enforcement agencies will have to rely on precedents, which will mean consenting adults,” the official said.
Another Ministry official gave an example of how the reading down of Section 377 might affect the way police deal with certain cases. “There was recently a complaint from a student against his seniors, who he said had forced him into ‘unnatural sex’ for almost an year, leading to his contracting HIV.” In a case such as this, the official said, police will have the tricky task of establishing whether the alleged sexual acts were consensual or not.
What is Section 377 IPC?
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.
How the law came to be
Sodomy is first recorded as a crime in the Common Law treatises of Fleta (1290) and Britton (1300), which said sodomites should be burnt alive.
In 1533, England passed the Act For the Punishment of the Vice of Buggerie, prescribing the death penalty for “unnatural sexual acts against the will of God”. The Buggery Act, re-enacted in 1566, set a template for British colonies.
In 1828, new laws came in. In 1861, punishment was reduced to 10-year to life term in England & Wales.
In India, the Act for Improving the Administration of Criminal Justice in the East Indies, in 1828, made sodomy punishable with death.
In 1837, a Draft Penal Code proposed to punish “unnatural lust”; the Report of the Indian Law Commission refused to discuss it.
The IPC, along with Section 377, was assented to by the Governor General on October 6, 1860, after passage by the Legislative Council.