Decriminalizing “Carnal Intercourse Against The Order Of Nature”

Decriminalizing “Carnal Intercourse Against The Order Of Nature”

By Dr. P.S. Sahni & Shobha Aggarwal

18 December, 2015
Countercurrents.org

An open letter to the Indian Parliamentarians on the repeal of Section 377 Indian Penal Code

As members of AIDS Bhedbhav Virodhi Andolan (AIDS Anti-Discrimination Movement, ABVA) which has spearheaded the movement on gay issues right from 1988-89 and had brought out the first citizens’ report on the gay issue, Less than Gay in 1991,[1] we appeal to the Indian Parliamentarians to take a quantum jump and stand up for Lesbian, Gay, Bisexual, Transgender (LGBT) rights right inside the Parliament. Ever since the Supreme Court of India re-instated Section 377 of the Indian Penal Code (IPC) in 2013, few amongst you have dared to take a pro-LGBT stance on the issue. Sonia Gandhi of Indian National Congress (INC) publicly stated:

“I am disappointed that the Supreme Court has reversed a Delhi High Court ruling … the High Court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution…I hope Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India.” [The Times of India, 13.12.2013]

Rahul Gandhi expressed disappointment with the Supreme Court (SC) verdict on homosexuality:

“These are matters of personal freedom, I would agree with the High Court more on this matter.”[2]

The Communist Party of India (CPI) leader D. Raja asked the NDA Government to initiate the process of bringing suitable amendments to Section 377, IPC which was declared as constitutional by the Supreme Court.[3]

The CPI(M) Election Manifesto, 2014 stated “Amend Section 377 of the Indian Penal Code so that it does not criminalize adult consensual relationships irrespective of sexual orientation.”[4]

The Aam Aadmi Party was:

“…disappointed with the judgment of the Supreme Court upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The Supreme Court judgment thus criminalizes the personal behavior of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times.

Aam Aadmi Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law.”[5]

Terming the judgement as “disappointment”, TMC MP Derek O’Brien had said, “we are living today in a liberal world and the judgement is disappointing.”[6]

The Supreme Court judgement in Suresh Kumar Koushal & another (11.12.2013) outlined the history of anti-sodomy law in India. The offence of sodomy was introduced in India on 25.07.1828 through the Act for Improving the Administration of Criminal Justice in the East Indies. In 1837, a Draft Penal Code was prepared which included two clauses viz. 361 and 362: “Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal …” with or without consent would be punished with imprisonment. In Note M of the Introductory Report of Lord Macaulay to the Draft Code these clauses were left to his Lordship in Council without comment observing that:

“Clauses 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible be said. We leave without comment to the judgment of his Lordship in Council the two Clauses which we have provided for these offences. We are unwilling to insert, either in the text, or in the notes, anything which could have given rise to public discussion on this revolting subject; as we are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

[Note M on Offences Against the Body in Penal Code of 1837 – Report of the Indian Law Commission on the Penal Code, October 14, 1837.]

The rulers at that time in 1837-38 desired that as little as possible be said of these offences and wanted to thwart any public discussion on this ‘revolting’ subject. Ironically, in the Report of the Commissioner’s Vol XXVIII it was observed that a most improper ambiguity has been created; the false delicacy created by the ambiguity needed to be censured. The IPC along with Section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on 06.10.1860.

This ambiguity in the law due to the rulers pretending to be coyish and the absence of public discussion around sexuality has effectively ensured that from 1828 to date i.e. for around two centuries different judges in the courts have interpreted the law differently.

In Govindarajula In re. (1886)1 Weir 382 it was held that inserting the penis in the mouth would not amount to an offence under Section 377 IPC; while in Khanu v. Emperor AIR 1925 Sind 286 it was held “that coitus per os is punishable under section 377 IPC”! In Khandu v. Emperor 35 Cri LJ 1096 (AIR 1934 Lah 261) it was observed that “Carnal intercourse with a bullock through nose is an unnatural offence punishable under Section 377, Penal Code." Again in Lohana Vasantlal Devchand v. The State AIR 1968 Guj 252 it was held that the act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature. Ironically in State of Kerala v. Kundumkara Govindan and Anr., 1969 Cri LJ 818, the Kerala High Court observed: “Committing intercourse between the thighs of another is carnal intercourse against the order of nature.” In Calvin Francis v. Orissa 1992 (2) Crimes 455, the Orissa High Court outlined a case in which a man inserted his genital organ into the mouth of a 6 year old girl and observed that coitus per os is punishable under the section.

Supreme Court of India in its judgement in Suresh Kumar Koushal by Justices G.S. Singhvi and Sudhanshu Jyoti Mukhopadhaya have cited the aforementioned cases and many more and concluded that no uniform test could be culled out to classify acts as “carnal intercourse against the order of nature”; hence it was difficult to prepare a list of acts which would be covered by the section.

The British could be excused at least on the ground that they self-confessedly suffer from Victorian values on matters sexual. No such excuses for the Parliamentarians in India – a country which boasts of Kama Sutra (with a full length chapter on gay sex); Khajuraho caves which openly display sculptures in acts constituting “carnal intercourse against the order of nature”. The present day legislators will have to see India not through colonial eyes but with a knowledge of the ancient cultural practices.

While a few legislators have taken a bold stand outside Parliament even recently in 2015, there is no action within the precincts of the Indian Parliament. Arun Jaitley and P. Chidambaram while speaking at the Times Lit Fest in Delhi on 28.11.2015 (The Times of India, 29.11.2015) lamented the stance of the Supreme Court of India in reinstating Section 377, IPC. Shashi Tharoor made it be known through his twitter handle that he was moving a private member’s bill on the issue but he refused to give details of the bill itself. At a time when the Government of India puts up all bills in public domain before moving these in Parliament it would be more democratic if Tharoor’s bill is shared and opinion of all stake holders taken as also of those who are exerted upon the issue for over quarter of a century.

We, at ABVA, had sent an open letter to Sonia Gandhi about two years back for initiating a move for a private member’s bill on the issue.[7] Now that more than seven Members of Parliament (M.Ps) of different parties and also the Aam Aadmi Party (AAP) has supported the repeal of Section 377, IPC it would be appropriate that these M.P.s move either individually or collectively for a calling attention motion in Lok Sabha/Rajya Sabha where the issue should be discussed thread bare; apprehensions of parties like Samajwadi Party (who are opposed to the move) should be addressed. Also since the LGBT number could be as high as 4% of the population it would not just be sufficient to repeal Section 377, IPC but also to discuss and debate how this section of society has silently suffered principally because the democratic institutions were reluctant to address their concerns.

Generally a calling attention motion could last for up to a few hours and may even get extended up to the next day; the practice is to ensure that representatives of all parties speak. Since legislators belonging to INC, BJP, CPI, CPI(M), AAP, have already taken a stance, and also if they sign a calling attention motion notice, the Speaker in Lok Sabha and Chairman in Rajya Sabha would have no option but to permit such a debate. Both the nation and the Indian Parliament owe it to the LGBT community all this and much more.

In the Rajya Sabha MPs from various political parties like Derek O’Brien (TMC); D.Raja (CPI); Sitaram Yechury of CPI(M); Arun Jaitley (BJP) and Mani Shankar Aiyar (INC) could file notices with the Chairman, Rajya Sabha for ‘calling attention motion’ urging the house on a matter of urgent public importance. Even in the Lok Sabha elected representatives like Sonia Gandhi, Rahul Gandhi, Shashi Tharoor of INC as also elected representatives of AAP could file notices with the Speaker of the Lok Sabha for a similar debate. Unlike in the years 1828, 1837-38 and 1860 when colonial masters shied away from public discussion and left ambiguities in the law, the present day law makers in the Indian Parliament must ensure that history is not repeated. That practices like fellatio, cunnilingus should be explained, discussed and debated. Finally the law makers should ensure that adult consensual homosexual acts in private are decriminalized. It should be expressly discussed whether lesbianism was ever an offence under Section 377, IPC and if it was then it stands decriminalized. ABVA has always felt that ambiguity in law posed a real threat to the lesbians in India.

More than a year earlier on 22.07.2014 when a question was raised by MP Dharam Vira Gandhi in Parliament whether the Government of India proposed to repeal Section 377, IPC the Minister of State in the Union Ministry of Home Affairs stated that the matter is sub judice. For ready reference reproduced below is the Parliamentary question as well as answer:

Question:

(a) whether the Government proposes to amend or repeal Section 377 of the Indian Penal Code (IPC);

(b) if so, the details thereof;

(c) whether the Government proposes to give legal status to the sexual relationship outside the gender binary in a context where the Supreme Court has recognized the third gender and guaranteed them rights under the OBC category including holding discrimination on the basis of sexual identity and gender orientation as unconstitutional ; and

(d) if so, the details there of?

Answer:

Minister of State in the Ministry of Home Affairs (Shri Kiren Rijiju)

(a) to (d): No Madam. The matter is sub-judiced before the Hon’ble Supreme Court of India. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Hon’ble Supreme Court of India.

The truth of the matter is that the matter is not sub judice as the curative petition pending in the Supreme Court of India for about two years has yet to be heard by a five judge bench to decide on its admissibility!!! Secondly, the 2013 Supreme Court judgement in Suresh Kumar Koushal categorically urged legislators to do their bit. It stated:

“…we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.”

When it suits the legislators the Indian Parliament never shies away from doing a Shahbano on the apex court judgement or passes legislations to specifically overturn orders passed by the apex court. In effect Parliament would be implementing the Supreme Court 2013 judgement by repealing Section 377, IPC.

Both the Supreme Court and Indian Parliament should stop throwing the ball in each other’s court! (no pun intended)

From:

Dr. P.S. Sahni and Shobha Aggarwal

Members, AIDS Bhedbhav Virodhi Andolan

Email: aidsbhedbhavvirodhiandolan@gmail.com

[1] http://www.sacw.net/article10497.html
[2] http://www.firstpost.com/politics/rahul-gandhi-refuses-to-back-sc-ruling-on-section-377-1284173.html
[3] http://www.aninews.in/newsdetail2/story242655/govt-should-try-to-bring-suitable-amendments-in-section-377-cpi.html
[4] http://cpim.org/elections-2014/manifesto
[5] http://www.aamaadmiparty.org/news/aam-aadmi-partys-statement-on-supreme-court-judgement-upholding-section-377
[6] http://indianexpress.com/article/india/regional/mps-voice-reservation-on-sc-verdict-on-homosexuality/
[7] Mainstream, VOL LII, No 10, March 1, 2014; http://www.mainstreamweekly.net/article4759.html