Opinion The non-enforceable Section 377

I wonder whether those who get uptight about Section 377 of IPC have bothered to read it.

New DelhiJuly 10, 2009 02:57 PM IST First published on: Jul 10, 2009 at 02:57 PM IST

I wonder whether those who get uptight about Section 377 of IPC have bothered to read it. This is what it says,titled as “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.”

So there is a requirement of penetration,though what is being penetrated is not specified. If something is being penetrated,the section applies to all relationships,man-man,man-woman,woman-woman and human-animal. And if nothing is being penetrated,the section ought not to apply. The point is the following.

Before passing any legislation,one should ask whether it can at all be enforced. In consensual instances between adults,how does one ever obtain evidence on an unnatural offence being committed? Such acts are unlikely to be committed in public. I tried to track down actual prosecutions under Section 377 since 1947. I may be wrong. But I haven’t been able to find a single case involving an animal.

Every case I have found concerns non-consensual relationships,in particular,sodomy. More accurately,those are instances of rape and forced sex on minors. Therefore,if one amends rape laws,the rest of Section 377 is non-enforceable. Even if one assumes for the moment that this is against Indian culture,whatever that may mean,no convictions (as opposed to harassment) can result.

On culture,IPC wasn’t the outcome of Indian culture. It was the outcome of Victorian English culture. So we should be clear about what we are defending. Forget Kama Sutra and Khajuraho. It would be very difficult to argue that Dharmashastras (such as Manu Smriti) have strictures against homosexuality,as opposed to strictures against wasting one’s seed (procreating for the sake of progeny) or corrupting virgins.

What are we supposed to have a national debate and consensus on? These are facts that can’t be disputed. Contrary to its common usage,consensus doesn’t mean unanimity. It means collective opinion,which translates into views of the majority. That was indeed the point of the Delhi High Court judgement,one should protect rights of minorities. Consensus is a red herring,we will never get that.

Section 377 needs repeal because it is non-enforceable and because there isn’t a consensus.