Author: Syed Atif
The Indian Penal Code, 1860 (hereinafter, ‘the IPC’) is the principal legislation governing substantive criminal laws in India. Various provisions are enlisted under the Code. One such law was Section 377.
The provision that has been in debate for quite a long was a colonial law. It was criticised for various reasons and the judiciary had been nudged many times to deliberate upon the constitutionality of the law.
Recently, in Navtej Singh Johar v. Union of India, a Bench of the Honourable Supreme Court of India, headed by the former Chief Justice of India, Honourable J. Dipak Misra, read down the colonial law which hampered the sexual freedom of homosexuals and the LGBTQ community in this country.
Rape is forceful sexual intercourse, without the victim’s consent and against its will. Thus, gender should not be criteria to invoke the culpability for the offence.
Sadly, gender is a consideration and only a male can be booked for committing rape on a woman. A man cannot be booked for doing so on a man and a woman cannot be booked for doing so on a man or another woman. Hence, the definition presumed for the purpose of considering rape as an offence is quite narrow and grossly unjust.
Section 377 and Homosexuality
Sexual orientation varies from individual to individual. A general line can never be drawn. It’s not always that a man is attracted to a woman or a woman is attracted to a man. When Michael Kirby, a former judge of the High Court of Australia and a former President of the International Commission of Jurists, delivered the 2013 Tagore Law Lectures, his theme was ‘Sexual Orientation and Gender Identity – a new province of law for India’. In 1999, J. Kirby had publically shared with the world that he was homosexual.
Homosexuality though attracts a unique sexual orientation but is definitely not an offence. While most religions condemn homosexuality explicitly, a secular country is not expected to be driven by religious bindings while making secular laws. The UDHR adopted on December 10, 1948 states that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. December 10 is celebrated as Human Rights Day. Ironically, on December 11, 2013, a liberating and internationally acclaimed judgment of Delhi High Court was reversed by the Supreme Court after 4 years. The judgment by the Delhi High Court delivered on 2nd July, 2009, though welcomed by the public at large, was much criticized by the legal fraternity, claiming that it was unlawful by virtue of Section 377 of the IPC. The Supreme Court on appeal reversed the decision saying that it was against the provision under the IPC. The public and the media were all out in the open criticizing the Apex court without looking into the fact that it is the law which is defunct and the judiciary is not at fault. The much-debated provision under the IPC is 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.
Explanation .- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
Section 377 was the only law in India that per se dealt with or somewhat touched the concept of homosexuality. Unlike rape, Section 377 did not talk about ‘force’ and/or ‘coercion’ and hence even consensual sexual intercourse ‘against the order of nature’ was punishable under Section 377. This provision punished homosexuality ipso facto. Thus, the blame is to be put on the legislature and not the judiciary for such a bias provision in law.
After the judgment, there seems to be a lack of clarity on various issues. For example, the question of whether the decision allows people to engage in acts of sodomy, which includes coitus per os (mouth contact with male genitals) and cunnilinctus (mouth contact with female genitalia), and similar forms of sexual activities remains ambiguously answered.
The provision prohibited carnal intercourse against the order of nature with any man, woman or animal. Hence, it was a much wider law than it was presented. Homosexuality was not the only thing that was covered by it.
Section 377 was a colonial law. However, the blame can certainly be put on the legislature of India for turning a blind eye to this bias law for so many years after independence.
The term ‘against the order of nature’ was not defined. Over the years, Courts have interpreted the term so widely, that it included every act except the ones which resulted in procreation.
A cardinal principle which the Court discussed is that of autonomy. This means that an individual has sovereignty over his or her own body. He or she can surrender his or her autonomy wilfully to another individual and their relation is a matter of their privacy. Hence, since a person is allowed to surrender his autonomy by free will in a private setup, they should also be allowed to engage in a sexual activity of their own choice.
The lack of explicit mention by the court leaves a room for ambiguity.
The former Chief Justice of India Honourable Justice Dipak Misra, and Honourable Justice A.M. Khanwilkar held:
“The overarching ideals of individual autonomy and liberty, equality for all sans discrimination of any kind, recognition of identity with dignity and privacy of human beings constitute the cardinal four corners of our monumental Constitution forming the concrete substratum of our fundamental rights that has eluded certain sections of our society who are still living in the bondage of dogmatic social norms, prejudiced notions, rigid stereotypes, parochial mindset and bigoted perceptions. Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves a truly free society.”
But then the court in its final verdict states that Section 377 in so far as it prohibits ‘consensual sexual relationship’ is unconstitutional. This would logically mean any such possible sexual activities which are consensual barring those performed on animals. There exist other instances in the judgment as well. For instance, Justice Chandrachud referred to acts of sexual activities sans procreation as a manifestation of basic human urges.
The issue with Section 377 was not of homosexuality alone. Though the judgment in its wisdom has tried to uphold the principle of liberty as enshrined under the Constitution to the best of its possibility, however, it can be understood that even the judiciary can’t do much in reading down or interpreting a law if the law itself is so biased and blind.
Section 377, after this judgment, now finds a place in the category of provisions like Section 375 and hence, the same problem that exists with Section 375 accrue now on Section 377, as well.
Consent is not the be-all and end-all of sexual offences; sometimes consent is given under duress; at times it is given under misconception; sometimes it is consented to because not doing so has enormous social and economic ramifications for the victim, and so on. The lack of resistance and even the presence of overt consent do not always indicate that forceful sexual relations weren’t established. This consent is a tricky part of the offence; but what we do unequivocally know that sexual relations established without consent are punishable. However, consent is not the only ingredient of the offence. Consent is quite subjective. For instance, it becomes difficult to deliberate whether homosexual rape can be brushed under the carpet of “unnatural sex”.
This issue of consent remains unresolved even after this judgment.
Even in 2018 and despite so many landmark judgments coming daily, male rapes are still not punishable.
Indian law does not give a literal interpretation to the word ‘equality’. Many cases have been decided by the Indian judiciary to give an effective definition of the term equality. In E.P. Royappa v. State of Tamil Nadu, Honourable Justice P. N. Bhagwati held and I quote,
“Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed cabined and confined” within traditional and doctrinaire limits.”
However, the whole concept of giving such an interpretation to the term ‘equality’ is to widen its ambit and to give it a positive effect in practice.
Rape law under the Indian penal code is a clear violation of the principle of equality. The only provision which somewhat protected men from forceful sexual violence now stands deleted and hence, men today have no recourse left whatsoever to seek protection from such sexual violence.
Male rapes exist and are a reality today though the mainstream legal luminaries are not willing to accept this fact. However, statistics speak differently. The National Intimate Partner and Sexual Violence Survey, 2010 is a telephonic survey that measures the magnitude of sexual and other violence among adult men and women in the United States. It found that one in every seventy-one men (1.4 per cent) have been raped once in their lifetime. It is an estimated 1.5 million men which is a huge number. The figures include oral or anal penetration by a male using his penis. It also includes anal penetration by a male or a female using their fingers or an object.
The Bureau of Justice Statistics’ National Crime Victimization Survey found that 11 per cent of the total sexual assault victims are male. A 2007 study of the Bureau of Justice Statistics survey found that 4.5 per cent of the nation’s state and federal prisoners experienced sexual victimization in only a one year period.
India is no different and the current situation considering the gravity of punishment for rape in India post the 2013 amendment has only worsened the situation, keeping the narrow and bias definition for rape intact. Ideally, India would be able to provide its own numbers of statistical comparison. However, given than rape by legal definition itself cannot be committed on a man, there is no good way of determining how the male survivors exist in India. Of lately, the Delhi-based Centre for Civil Society found that approximately 18 per cent of Indian adult men surveyed reported being coerced or forced to have sex. Of those, a massive 16 per cent claimed a female perpetrator while the rest 2 per cent claimed a male perpetrator.
The only recourse, if any that existed was Section 377 which also, after the Navtej Singh Johar judgment stands deleted, thereby leaving no legal remedy for an adult male victim of sexual violence in India.
Another argument raised is that female rape survivors in the Indian society which presses so much on female virginity are looked down upon. However, though not on the same line, but there are burdens placed on male survivors as well, such as being perceived as effeminate, which will not be felt by a female survivor as their pain is different, neither being less grave or less tormenting.
But, almost all crimes affect different types of victims in different ways. However, prosecution is done on the sameness of the crime and not on the sameness of the effect. A murderer of a woman and a murderer of a man both will be prosecuted under Section 302 of the Indian Penal Code. But, sadly, we cannot say the same for male rapes and Section 376, rape.
Marriage between same-sex couples
The judgment in discussion has failed to realise the after effects of legitimising homosexual relations.
Marriage is a recognised institution in India. Indian culture gives huge respect to this institution. As Dr. S. Radhakrishnan observes, “Marriage is not a mere convention but an implicit condition of human society….. It is an adjustment between the biological purposes of nature and the sociological purposes of man…. It is an institution, it is a device for the expression and development of love.” It is closely connected with the institution of family.
Marriage is an institution of society which can have very different implications in different cultures. Its purpose and forms may differ from one society to the other, but it exists everywhere. It is the very foundation of a civil society, as regarded by all religions uniformly. Family is the most significant unit of society and marriage is its foundation. Both have a long history of their own.
Among Hindu social heritage, marriage has never been looked at from the materialistic point of view. The Rigveda itself speaks of the sanctity of the institution of marriage. Ever since, the institution of marriage has attained social and religious sanction. It is a matter of religious duty for Hindus. Hindu shastrakaras have prescribed that girls should marry as soon as they attain marriageable age. A girl who continues to stay in her father’s home more than three years after attaining puberty, is called a “Vrishala” or a “sudra”, that is a very low type, and the father or the guardian of such a girl is said to be incurring a great sin.
As per Islam, marriage is considered a contract but yet enjoys a high sanctity. When a Muslim marries, he or she is said to have completed half of its deen (religion). Some of the relevant verses from the Holy Quran are:
“And marry those among you who are single (i.e. a man who has no wife and the woman who has no husband) and (also marry) the Salihun (pious, fit and capable ones) of your (male) slaves and maid-servants (female slaves). If they be poor, Allah will enrich them out of His Bounty. And Allah is All-Sufficient for his creatures’ needs, All-Knowing (about the state of the people).”
“And among His Signs is that He created for you wives from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect.”
“….(Lawful to you in marriage) are chaste women from the believers and chaste women from those who were given the Scriptures (Jews and Christians) before your time when you have given them due Mahr (bridal-money given by the husband to his wife at the time of marriage), desiring chastity (i.e. taking them in legal wedlock) not committing illegal sexual intercourse….”
Hence, marriage is considered not only a respectable but a sacred institution in all religions. Thus, breaching the sanctity of the institution is a great sin and probably that is the reason why the Indian law, which gives immense respect to religious communities, punishes offenders for breaching the sanctity of the institution of marriage.
Legal obligations under various personal laws are stated for both husband and wife since marriage is a matter of personal law in India. However, nowhere has it been stated as to under what law or what kind of legal obligations bind homosexual couples living together.
The Supreme Court had ruled in 2015 that if an unmarried couple is living together as husband and wife, then they would be presumed to be lawfully married. A Bench of Justice M Y Eqbal and Justice Amitava Roy said continuous cohabitation of a couple would raise the presumption of a valid marriage.
The Court held:
“15. It is well settled that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a long time.”
The 2015 judgment and the judgment in Navtej Jauhar now puts the law agencies, legislature and judiciary in a dilemma as to how will a same sex couple, married or even living together, be bound by the marital obligations as in case of other marriages or live-in relations. That is to say, as to who will play what role and who can be held accountable for not fulfilling what marital obligations are questions that remain unanswered.
Section 125 of the Code of Criminal Procedure, 1973, puts an obligation on a man to maintain his wife, children and parents. However, it is still unclear as to whether Section 125 will extend even to same-sex couples as well since the judgment doesn’t speak about it and also the provision under the law makes no mention of it. This is another criticism of the judgment.
The law of adoption in India, again, varies from one religion to the other as it is governed by personal laws and every religion has its own personal law.
However, unanimously it is agreed upon that adoption can be done by anybody, including married couples. However, no such provision is made allowing same-sex couples to take a child in adoption.
Though the judiciary can intervene anytime and allow such a couple to take a child in adoption since such relations are perfectly legal now, not having a legislation or law to that effect, in place, can certainly and in all possibilities lead to issues and frivolous litigation before the courts. This could have been resolved by the judgment itself, however, the Apex court failed to do so.
Article 25 to 28 of the Indian Constitution guarantee to every citizen the freedom to profess a religion of one’s choice.
India is a land of many religions and communities. Though there are various fundamental differences among religions, on some topics they agree unanimously. Homosexuality is one of them.
All the religions unanimously condemn homosexuality and oppose it. However, after legitimizing homosexual relations, it now becomes a part of right to life and personal liberty of homosexual couples, protected under Article 21. Here arises the conflict between fundamental rights enshrined under the Constitution. This again shall lead to chaos in the society and frivolous litigation before the courts.
Navtej Johar was a landmark verdict in the fight for emancipation of the rights of homosexuals in the country. However, there is a long way to go. Though homosexual couples have now been recognized by the law, the question as to their other rights and legal obligations still remain to be answered and be deliberated upon. It shall be the duty of both the legislature and the judiciary to work in that direction and resolve all such issues that shall now arise.
 The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India).
 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.
Explanation .- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
 W.P.(Cr.) No. 76 of 2016.
 Subs. By Act 26 of 1955, sec. 177 and Sch., for “transportation of life” (w.e.f. 1-1-1956).
 Khanu v. Emperor, AIR 1925 Sind 268; Khandu v. Emperor, AIR 1934 Lah. 261; Lohana Vasantlal Devchand and Ors. v. State, AIR 1968 Guj 252.
 Supra Note 4.
 We, the People of India, having solemnly resolved to constitute India into a [Sovereign Socialist Secular Democratic Republic] and to secure to all its citizens:
Justice, social, economic and political;
Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity;
and to promote among them all
Fraternity assuring the dignity of the individual and the [unity and integrity of the Nation];
In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby, adopt, enact and give to ourselves this Constitution.
 Art. 14.- The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
 AIR 1974 SC 555.
 National Crime Victimization Survey, United States Department of Justice, Criminal Victimization 1999.
 Allen Beck and M. P. Harrisson, Sexual Victimization in State and Federal Prisons reported by inmates 2 (U.S. Dept. of Justice, Pub. No.: NCJ221946, 2007).
 available at: http://ccs.in/indias-law-should-recognise-men-can-be-raped-too (last visited on July 22, 2016).
 Dr. S. Radhakrishnan, Religion and Society (1956).
 Rig Veda, Hymn XXXII, Verse 3 (English Translation by R.T. Griffith).
 The Holy Quran, Surah An-Nur, Ch. 24, Verse 32 (Dr. Muhammad Muhsin Khan, Translation of the meanings of The Noble Qur’an in the English Language (King Fahd Complex, Madinah, KSA)).
 The Holy Quran, Surah Ar-Rum, Ch. 30, Verse 21 (Dr. Muhammad Muhsin Khan, Translation of the meanings of The Noble Qur’an in the English Language (King Fahd Complex, Madinah, KSA)).
 The Holy Quran, Surah Al-Ma’idah, Ch. 5, Verse 5 (Dr. Muhammad Muhsin Khan, Translation of the meanings of The Noble Qur’an in the English Language (King Fahd Complex, Madinah, KSA)).
 Commissioner, Sales Tax, U.P. … vs M/S. Bhagwan Das & Bros, Civil Appeal No. 3410 of 2007, decided on April 8th, 2015.
 125. Order for maintenance of wives, children and parents.—(1) If any person having sufficient means neglects or refuses to maintain—
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself,
a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate 1 * * * as such Magistrate thinks fit and to pay the same to such person as the Magistrate may from time to time direct:
Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means:
[Provided further that the Magistrate may, during the pendency of the proceeding regarding monthly allowance for the maintenance under this sub-section, order such person to make a monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may from time to time direct:
Provided also that an application for the monthly allowance for the interim maintenance and expenses of proceeding under the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of the application to such person.]
Explanation.—For the purposes of this Chapter,—
(a) ―minor‖ means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875) is deemed not to have attained his majority;
(b) ―wife‖ includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.
[(2) Any such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be.]
(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month‘s 4[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Explanation.—If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife‘s refusal to live with him.
(4) No wife shall be entitled to receive an 1[allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favour an order has been made under this section in living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent.
About the Author: Syed Atif is an advocate and practices in the Supreme Court of India.
Another article by the Author: Actus Reus & Mens Rea: the Inseparable Components of Crime
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