Delhi Commission for Protection of Child Rights
Govt. of N.C.T.of Delhi
ISBT Building, 5th Floor, Kashmere Gate, Delhi-110006

*Amod K. Kanth, Chairperson

SECTION 377 - IPC - (UNNATURAL OFFENCES):
 A COUNTERVIEW

 Earlier, this Commission, constituted through an Act of Parliament to protect the rights of the children (up to 18 years) as enshrined in the Constitution of India, United Nations Conventions, various Laws and Policy commitments of the Govt.,  had taken up the case to stop outright deletion of Section 377 IPC (un-natural offences) at the highest levels in the Govt. of India.  Another proposed Law, the Offences Against Children Bill since being dropped, and no other comprehensive law except Juvenile Justice (Care and Protection of Children) Act 2000 being there, this is the solitary provision under the Indian Penal Code in Chapter on ‘Sexual Offences’ available for remedy to the children, parents / guardians, the care givers, police and other enforcement agencies, Courts and activists.

Our stand has been vindicated within the Delhi High Court Judgement (WP (Civil) 7455/2001) since “Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and non-vaginal sex involving minors” (minors – persons below 18 years of age).  However, the said  Judgement which is likely to seriously impact the physical, psychological, emotional and sexual behavior of the children and adolescents in India, in their continuous process of development,  18th  year of age, being the end of childhood may not change the situation overnight.  In any case, the said Judgement has to be carefully scrutinized keeping in view the existing provision of law which concerns carnal intercourse against the order of nature with both the categories of persons, man and woman,  besides the animal, under Section 377 IPC, which reads as under :   

“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.”

Since, this Commission, like thousands of agencies and millions of victims across the country, is legally bound to undertake cases of 377 IPC on day to day basis, we are also required to examine the implications of the Judgement.

Although, the ‘Doctrine of  Severability’ has been discussed within the Judgement, it does not provide solution to our problem “since the impugned provision is one indivisible whole” and the definition does not cover distinct and separate classes and categories or sub-sections of Law, the enforcement of which could be restrained by the Hon’ble Courts.  It needs to be urgently understood how, the victims, the accused, the police officers, lawyers and courts will deal with the matter. As a former Police Officer myself and presently the Chairperson of the Child Rights Commission,  I am not able to understand how do I take action in respect of a large number of cases, which keep on coming up.       
  
Whereas, the ‘Objective Resolution’ about inclusiveness, as moved by Pt. Nehru in the Constituent Assembly as quoted, is truly acceptable for the challenged,  marginalized and unfairly excluded; inclusivity does not mean over-looking the special needs for treatment for many.  The Judgement appear to accept that “there is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality’. In 1992, it is mentioned that WHO had removed homosexuality from the list of mental illnesses in its International Classification of Diseases (ICD-10); however, in the same classification gender identity disorders, trans-sexualism and disorders of sexual preferences, such as, fetishism, exhibitionism, voyeurism and pedophilia, have been listed in the broad categories (F-64 and F-65) of the Disorders of Adult Personality Behaviour.   The conclusion appears contradictory since most of these disorders happen to be widely prevalent amongst lesbian women, gay men, bisexuals and transgender groups (LGTB), whose sexual orientation and public conduct stand legalized and endorsed through this Judgement.  There is an urgent need to study and find out the possible effects of such public and private behavior and conduct on the part of the so-called sexual minority over 50% of India’s highly impressionable population, who happen to be children, adolescents and youth. 

Against the proposed deletion of Section 377 IPC numerous voluntary organizations working for children across the Country had vehemently argued that Section 377 IPC happens to be the only protection of Law for children and minors and, often, against the adult and women victims of sexual assaults as well when they fall within the definition of ‘unnatural offences’.  Some leading Legal Experts, Psychologists, Social Workers and Activists besides the law enforcing agencies across the country feel that in the absence of any other law there is no safeguard,  except Section 377, to the helpless children and others against the widely prevalent  forced homosexuality and unnatural sex, including sodomy and buccal coitos (an act like putting male organ into the victim’s mouth, an initial act of sexual intercourse for the purpose of satisfying sexual appetite), which are punishable under this Section alone. 

Obviously, majority of people in the Country would like the basic provisions within Section 377 IPC to continue in so far as it provides protection against sexual assaults to men and women, including children, and also the animals, whose silent submission must not be taken as consent.

Through this Judgement the supremacy of the constitutional morality over the public morality regarding the sexual orientation related rights of  LGTB minority, has been accepted.  The sacrosanctity of the Fundamental Rights, particularly Article 14 (The right to equality under law ) and Article 15 (prohibition and discrimination on grounds of religion, race, caste, sex or place of birth) is beyond dispute.  The Hon’ble High Court has gone into an in-depth scrutiny and analysis about the application of the ‘rights relating to sex’ against discrimination that is, allegedly, being committed against LGTB minority.  Question is being raised whether the sexual rights of any individual is unilateral since ‘sexual orientation’ itself refers to a person’s erotic response and tendency, bisexual or heterosexual, towards other persons of the same or other sex.               

The entire emphasis of the enlightened discourse and the Judgement being about the unfair de-criminalization of consensual sexual acts between adults in private, myriad forms of highly prevalent forms of unnatural sex, including with the animals with far-reaching implications, are yet to be looked into.    

It is also argued that amongst the ‘sexual minorities’, there are multiple issues- ranging from the substance and alcohol abuse resulting in serious psychiatric problems to potential for serious societal disruptions in India’s highly applauded family set-up having  well  defined positions and roles for husband and wife, grand parents, parents and children,  their related fabric and norms, which will get distorted and ultimately disappear in case such practices are accepted.  

Even if we don’t accept the strong religious feelings across the communities against legalizing homosexuality or recognize the scientific evidence of mental and physical aberrations in homosexual practices, it is evident that promoting these behaviors may aggravate problems like HIV AIDS, anal cancer and anxiety disorders, justifying the adage, “personal freedom ends when public peril begins”.