By Aditya Singh Raghav
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Section
377 is an anti-sodomy provision which was added to Indian Penal Code 1860. It
reads 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 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.”
The
explanation provided states that, “Penetration is sufficient to constitute the
carnal intercourse necessary to the offence described in this section.”
Initially, section 377 impacted gay, lesbian, queer and transgender persons.
The section made sexual activities “against the order of nature” illegal and an offence, and made it punishable with imprisonment for life. However, in January 2018, section 377 was held to be unconstitutional to an extent in Navtej Singh Johar v. Union of India, and decriminalized sexual activities amongst consenting adults of all genders. This judgement protected the rights of lesbian, gay, transgender persons and sexual minorities. However, section 377 remained in force in relation to sex with minors, non-consensual sexual acts, and bestiality (sexual intercourse between a person and an animal). The judges stated that section 377 violated the constitutional right to equality and dignity. This section was introduced in India on the patterns of the then existing British laws for similar offences. To understand this section, we need to go back in time to when Britain was ruling India.
Is there any
sign of same-sex relations in India in Ancient time?
Construction of
Hindu temples in stone began around the sixth century. During the 12th
and 14th century, temples were made to depict ancient culture on their
walls and gateways. Temples were full of magnificent structures of God, warriors,
sages, demons, lovers, priests, monsters, plants and animals. One can also find
erotic images including those that current or modern law finds unnatural and
are considered obscene by today’s society. Similar images can be found in
prayer halls and cave temples. The presence of such images and art tells us
that the idea of same-sex relations existed during that time in India. Other
communities considered these relations as illegal and countries started enacting
laws to criminalize them to protect the interest of other communities as these same-sex
sexual relations were considered a threat to all.
Two terms which
are used to categories such communities are Heterosexuality and
Homosexuality. Heterosexuality was used to sexual practices between men
and women such as oral and anal intercourse. Homosexuality described sexual
passion between same sex people. All of this was declared unnatural by colonial
laws. Such laws were imposed all over the world as these were considered a sin.
Buggery Act of 1533
Section
377 was introduced in India on the patterns of Britain’s Buggery Act of 1533
which was introduced in Great Britain by the then king Henry VIII. Buggery Act
prohibited “the detestable and abominable offences” of buggery or sodomy (anal
intercourse) committed with mankind or beast. Buggery included sodomy between
men and women and unnatural sex by a person with an animal. The Act made
Buggery punishable by death. This act was replaced by the Offences against the
Person Act 1828. 8,921 men were indicted between 1806 and 1900 for “sodomy,
gross indecency or other unnatural sexual offences in England and Wales – that means
an average of ninety men every year were indicted for homosexual offences
during that period. Most of the men convicted were imprisoned, but between 1806
and 1861, 404 men were sentenced to death. Buggery remained a capital offence
in Britain until 1861 when death penalty for sodomy was finally abolished.
Establishment of Indian
Law Commission and Influence of East India Company
While
Buggery Act was still in practice in Britain, India was under the influence of
Britain. Britain entered India with the entry of East India Company and India
became highly dependent on British policies and Indian laws were highly
influenced by British laws. The First Law Commission was established during the
British Raj era in 1834 by the Charter Act of 1833 and Thomas Macaulay was
appointed to head the commission. Macaulay drafted this section in 1838 and too
most of the ideas from the Buggery Act 1533 and the Offences against the Person
Act 1828 which were applicable in Britain at that time.
Thomas Macaulay’s Draft
and the Enactment of the IPC
Section
377 was part of the draft of the Indian Penal Code (IPC) which was submitted by
the First Law Commission to the Governor General of India in 1837. The draft
was reviewed several times by the Commission and the revised edition of the
penal code was forwarded to the judges of Supreme Court at Calcutta and judges
of the Sudder Court at Calcutta in 1851. Section 377 was reviewed by a
committee formed under Sir Barnes Peacock which included the Chief Justice of
Calcutta, Justice Buller, Justice Colvile and Bethune, a member of the Legislative
Council of India. The Peacock Committee sent the draft for enactment and the Indian
Penal Code entered into force on 1 January 1862. The code was a compilation of the
then existing British laws governing punishment for crimes and section 377 entered
into force for the very first time in India.
Decriminalization in
the UK
UK
finally decriminalized homosexuality in 1967 by enacting the Sexual Offences
Act 1967. It is interesting to note that while the British government has now
made same-sex marriage legal and abolished the anti-sodomy provision, the
Indian government still followed this archaic law written in 1830 and enacted
in 1860 until 2018 when section 377 was finally decriminalized as it was
against the rights of the LGBTQ community and affected their privacy.
In the next part of the article we will read about the steps taken for decriminalizing section 377 and the struggle of the LGBTQ community in fighting for protecting their rights which were violated by section 377.
On to part 2 - A Timeline of the Struggle against Section 377 in India.
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Aditya is a 2nd year law student at National Law University Delhi. An adventurous person, he actively participates in sports activities and loves to go trekking. He is a football fan and you can easily find him discussing football matches with his friends. His interests include Commercial Law, Constitutional Law, Criminal Law and Competition Law.
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