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By Laxmi Murthy
Decriminalising private, consensual adult sexual behaviour, the Indian government feels, might open the floodgates of delinquent behaviour. By refusing to repeal Section 377 of the Indian Penal Code, the government is reinforcing 150-year-old strictures disapproving sex for pleasure and not procreation. Shouldn't the State allow consenting adults to make their own sexual choices?
On September 9, 2003, the Union Government filed an affidavit before the Delhi High Court in response to a petition filed by The Naz Foundation (India) Trust asking the court to decriminalise private, consensual adult sexual behaviour. Under Section 377 of the IPC, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” can invite a maximum sentence of life imprisonment and fine.
“Personal is political” has long been a rallying point for the women's movement, and never has it been as applicable as in the realm of sexuality. From abortion rights to the use of contraception, women's groups have campaigned for the right to control sexuality and bodily integrity. The vesting of the State with the power to police and criminalise the sexual behaviour of its adult citizens has also not gone unchallenged. The Aids Bhedbhav Virodhi Andolan (ABVA) in 1994 initiated one of the earliest attempts to demand a repeal of the archaic Section 377. Both petitions came up in the context of the spread of HIV/AIDS, and the need to decriminalise homosexuality in order to promote safer sex. The continued persecution of homosexuals, namely, the denial of the right to freedom of association, right to freedom of expression and access to information, and the right to be treated equally under the law makes this community extremely vulnerable to HIV and AIDS.
The issue has come up once again with the Centre's obdurate position in the Naz petition.
The proposed changes in law, the Centre said, “can well open the floodgates of delinquent behaviour and be construed as providing unbridled license for the same”. The government hopes to “provide a healthy environment in the society by criminalising unnatural sexual activities”.
Section 377 and the government's reluctance to repeal it sums up the historical attitude of the Anglo-Saxon legal system toward non-procreative eroticism, usually going under the broad – if inaccurate — term ‘sodomy'. The proscription of sodomy in the English tradition began in 1533 when King Henry VIII adopted contemporary church doctrine into a system of laws at the time of the English withdrawal from the Catholic Church. Sodomy became both a sin and a crime, since ecclesiastical law recognises no distinction between the concepts of ‘sin' and ‘crime'. Sodomy included any form of non-procreative acts including masturbation, oral and anal sex.
Originally, sodomy referred only to two sexual acts: anal intercourse between two men or a man and a woman, or sexual intercourse between a human being and an infrahuman animal of the opposite sex. Due to the profound ignorance of biology of people in medieval times, it was thought that bestiality could lead to the conception of half-human, half-beast offspring.
The Indian legal system has not only taken on this perspective, but has added its own brand of prudishness. The psychological discomfort of repressed or moralistic individuals from centuries before has created a jurisprudence that relegates the enjoyment of non-procreative physical intimacy to the status of criminality. While Section 377 does not refer specifically to homosexuality, the outlawed ‘acts' can be construed as such, and male homosexuals have borne the brunt of this archaic law, often being subjected to police harassment and extortion due to their sexual preference.
By equating consensual sex between adults with ‘delinquent behaviour', the government reinforces the biblical strictures disapproving sex for pleasure and not procreation. The IPC, enacted in 1860, was based on the English law prevalent at that time. While English law has moved on, enacting, in 1967, the Sexual Offences Act which decriminalised homosexual acts between consenting adults, Indian law continues in its outdated form. This position is untenable, since the Indian government itself no longer supports the assumption of sex-for-procreation, given that it invests large amounts annually in promoting measures of birth control and contraception for population control.
Despite the widespread fear that the repeal of Section 377 will unleash the floodgates of rampant homosexual activity, out of the 46 cases filed under Section 377 studied by Alok Gupta and Lawyers Collective, only six prosecute male-male adult anal intercourse. And only one of them prosecuted consenting adults. This was decided in 1935, DP Minwalla v Emperor, AIR 1935 Sind 78. Moreover, three of these six cases were spread over ten decades and the other half just in the 1990s. This trend in the last decade indicates the increased enforcement of the law, indicating clearly that Section 377 is anything but a dead law. While in the recent past, the law has almost never been used to prosecute consensual adult homosexual sex, illustrating the redundancy of criminalising consensual homosexual acts, the law has undoubtedly been used to harass, intimidate and extort money and sexual favours from vulnerable sexual minorities like male sex workers, hijras and transgendered people.
Fellatio or male-male sex came to the attention of the law before cunnilingus or sex between women, because of differences in sexual behaviour. As a rule, males are more likely to engage in sexual activity in public or semi-public places than are females. Moreover, sex between women was viewed as an oxymoron. In a case from Scotland, dating to 1811, the House of Lords decided, regarding a charge of cunnilingus between two women, “the crime here alleged has no existence”. While lesbians and bisexual women in the country are organising and demanding visibility and recognition, the current marginalisation probably works in their favour, since female-female sex is not specifically criminalised.
The question of child abuse, which is often quoted as a justification for retaining Section 377, is a complex one. Alok Gupta's research found that Section 377 has largely been used in prosecuting cases where anal and/or oral intercourse with children was involved. There are no Indian laws that specifically criminalise child sex abuse. A total of 30 cases (more than 60%) deal with child sex abuse.
Section 377 has been somewhat successful in penalising child sexual abuse and complementing the lacunas of the rape law, which is woefully lacking in both scope of definition and implementation. But this does not negate the clear threat the law presents to the sexual minorities of India, manifesting itself in harassment, extortion and blackmail by the police, with no legal protection. The reform of Section 377 requires a collective campaign demanding reform of all the sexual assault laws of the IPC. Child sex abuse should be included as an independent category of sexual offence. There is a dire need to evolve more effective legal formulations as well as procedures to ensure that sexually abused children are offered the protection of the law, and perpetrators can be brought swiftly to book.
Similarly, women's groups have been demanding a broadening of the definition of ‘rape' beyond penile penetration of the vagina. Yet, the emphasis is on ‘non consensual' acts, and not ‘unnatural' acts. Concurrently, it is important that sexual activities between consenting adults be de-criminalised, and protected under the right to life, privacy and equality guaranteed by the Constitution of India.
Reacting to the government's statement in its affidavit that fundamental rights are subject to ‘reasonable restrictions', groups like PRISM and CREA working on sexual rights, in an open letter say, “Restricting the access of millions of citizens to proper health care, failing to address rampant discrimination on the basis of their sexual preference, failing to protect them from harassment by the police and criminalising their consensual sexual acts while hiding behind the fig leaf of protecting Indian culture, are not reasonable restrictions by any standards. We urge the government to reconsider its position, bringing it in line with the requirements of the Constitution of India with regard to Fundamental Rights of every citizen and with the Universal Declaration of Human Rights.”
Concentrating its energies in the right direction – like tackling the ever-growing phenomenon of violence against women and children -- the government might do well to allow consenting adults to make their own choices about sexual behaviour.
(Laxmi Murthy is a freelance journalist specialising in gender and development. She has been active in the women's movement for the past 18 years)
InfoChange News & Features, October 2003
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