Validation of Section 377 of the Indian Penal Code has polarised opinion between an individual’s right of sexual choices and basic privacy, and the clamour of public morality.
While a final word is awaited from the Supreme Court on whether re-criminalising homosexuality and intercourse “against the order of the nature” was a correct decision, a new aspect of the sweeping ambit of Section 377 has come up for scrutiny before a Delhi court:
Should e-commerce web sites be prosecuted for abetting this offence by selling sex toys and other objects that facilitate “intercourse against the order of nature”?
Agreeing to examine this question, the magisterial court has ordered investigation by the police into the online promotion and sale of such products under the sexual wellness category by a few e-tailers named in the complaint by Supreme Court advocate Suhas R Joshi.
Metropolitan Magistrate Richa Gusain Solanki recently directed the Station House Officer (SHO) of Sabzi Mandi police station to conduct the preliminary probe. This police station has jurisdiction over the Tis Hazari courts complex, where the lawyer has an office.
The magistrate directed the SHO to file an action taken report after examining Joshi’s allegations that selling sex toys and products like anal lube, desensitiser, spray etc. amounted to abetting acts prohibited under Section 377, besides being allegedly in breach of other provisions related to public health and decency.
Under Section 377, voluntary “carnal intercourse against the order of nature with any man, woman or animal” is punishable with imprisonment from 10 years to life. The Supreme Court by its order in December 2013 had ruled that Section 377 would continue making gay sex — “irrespective of age and consent” — an offence. It had set aside the 2009 Delhi High Court judgment that had decriminalised gay sex, and held that it was for Parliament to decide whether the law should stay.
Naz Foundation and Voices Against 377, which have been spearheading the legal battle on behalf of the lesbian, gay, bisexual and transgender (LGBT) community, subsequently moved a curative petition, which was agreed to be heard in open court. But the case has not come up for hearing in the last nine months.
The magistrate has directed the SHO to file a report on March 21, stating whether any action has been taken on the complaint, and the status of the probe. The report is also supposed to answer the question: “Whether as a result of investigation/inquiry, any cognizable offence has been made out against the accused person and whether any action has been taken by the police.
The SHO has also been directed to say whether an FIR requires to be registered against the e-tailers in case the allegations amounted to the commission of a cognizable offence.
Joshi told The Indian Express that he intended to stir a debate over Section 377, and has sought to test the law as it stands after the SC judgment.
“My complaint is not against the LGBT community or any particular e-tailer, but only aims to highlight the unreasonableness of Section 377, which seeks to regulate the basic privacy of people and wants law enforcement to act as an unrelenting Peeping Tom. I would like to see how the government reacts to the court proceedings,” Joshi said.
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