What does Section 377 of IPC criminalize?

NEW DELHI: The Supreme Court, while re-criminalizing gay sex by upholding the constitutional validity of Section 377 of IPC, unsuccessfully searched for a “uniform test” to classify acts as ‘carnal intercourse against the order of nature’ which attracts a maximum sentence of life imprisonment.

A bench of Justices G S Singhvi and S J Mukhopadhaya scanned through judgments from 1925 till date and failed to find any uniform norm to classify what constituted the core of Section 377.

It noticed that in all these cases, there was absence of ‘consent’ and the sexual act was forced on the victim. “In our opinion, the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed,” the bench said.

“All the aforementioned cases refer to non-consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the court would rule similarly in a case of proved consensual intercourse between adults. Hence, it is difficult to prepare a list of acts which would be covered by the section,” it said.

In the case ‘Govindarajula In re. (1886) 1 Weir 382’, the court had held that “inserting penis in the mouth would not amount to an offence under Section 377”. The same view was reiterated in detail in Khanu vs Emperor (AIR 1925 Sind 286).

In a 1934 case, the Lahore high court in Khanu vs Emperor had held that “carnal intercourse with a bullock through nose is an unnatural offence punishable under Section 377 of Indian Penal Code”.

The apex court also cited a case dealt by Gujarat High Court in 1968, where two men first unsuccessfully attempted to sodomize a boy and then forced him to perform oral sex and ejaculated in the boy’s mouth.

The Gujarat HC had said, “It is true that the theory that sexual intercourse is only meant for the purpose of conception is an outdated theory. But at the same time, it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this 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.”

In 1969, the Kerala high court in the case ‘State of Kerala vs Kundumkara’ had ruled that “committing intercourse between the thighs of another is carnal intercourse against the order of nature” and the act fell within the ambit of Section 377.

In the 1992 judgment of the Orissa high court in the case ‘Calvin Francis vs Orissa’, the man was found to have inserted his genital into the mouth of a six-year-old girl. The HC had ruled that the “act complained of was punishable under Section 377”.

Dhananjay Mahapatra,TNN | Dec 12, 2013, 02.15 AM IST


Supreme Court upholds Section 377 criminalizing homosexual sex


New Delhi: In a blow to gay rights in India, the Supreme Court on Wednesday overturned a high court verdict that had set aside a law framed in 1860 and decriminalized consensual sex among adult homosexual men.

At the same time, the apex court put the ball in the government’s court, arguing that it was free to annul the law through legislation. The verdict was pronounced by justice G.S. Singhvi, who retired on Wednesday.

In 2009, the Delhi high court had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.
While the government did not appeal the high court decision, a challenge on the grounds of public morality was filed by groups of religious bodies and individuals, including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council.

Activists and lawyers who were blindsided by the apex court’s judgement condemned it even as conservative voices welcomed it.

Gay rights activist Ashok Row Kavi described the ruling as an “earth shattering verdict”.
Anjali Gopalan, founder and executive director of Naz Foundation, the non-governmental organization (NGO) that filed a lawsuit in the Delhi high court in 2001, said, “We have been set back by a hundred years. The ruling tells us what we are as a people. The whole process is reflective of the mindsets of those who have passed the judgment. It is bizarre, pathetic and sad.”

The judgement said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”

Justifying its ruling, it said, “The High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”

Noting that despite recommendations for amendment, Parliament has retained the law, the decision says, “This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”

It, however, left the door open for the executive to bring the necessary amendments to the law.

“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,” the order said.

Experts say any legal recourse will be very difficult. A review of the decision, if sought, is unlikely to reverse it as the matter will then be considered by the same bench—except that another judge will replace Justice Singhvi. A lawyer who represented some of the original petitioners said that even if the matter is heard afresh, the Supreme Court ruling will operate as a precedent, which will weaken the matter from the start.

Anand Grover, lawyer for Naz in the matter, however, sounded defiant. “I am extremely disappointed with the judgement. The Supreme Court has taken 21 months to tell the lesbian, gay, bisexual and transgender persons that they are criminals in the eyes of the law. The movement for LGBT (lesbian, gay, bisexual and transgender) equality is unstoppable, rooted as it is in the dignity and resilience of the LGBT persons. We will be filing a review of the present decision as soon as it is available,” he said.

By this decision, the court has failed to recognize people’s internationally protected right to privacy and non-discrimination, said Meenakshi Ganguly, Human Rights Watch South Asia Director.

While rural development minister Jairam Ramesh said the judgement “doesn’t do justice to a liberal society like ours”, home minister Sushilkumar Shinde said, “We have to abide by the decision”.

Amod Kanth, general secretary of Prayas, an NGO working for children’s welfare, who was one of the petitioners against the Delhi high court verdict, welcomed the apex court’s order.

IPC, drafted by the politician and historian Lord Thomas Macaulay in British India, criminalized homosexuality as per prevalent Victorian values.

However, while Indian statute books continue to criminalize homosexual sex, Britain reformed its law by the Sexual Offences Act 1967 and de-criminalized homosexuality and acts of sodomy between consenting adults—something noted by the high court.

Mrinal Satish, associate professor at the National Law University, Delhi, said, “Section 377 is inspired by the 18th century Victorian morality which believed that procreation is the only purpose of sex. The 20th century thought process is far removed from such retrograde beliefs and ideas.”

In the four years since the high court verdict, the gay community in India, granted equal rights by the law, has become more mainstream. Consequently, activists believe the Supreme Court order turns the clock back.

Mumbai-based journalist Vikram Doctor said, “Many young people who came of age in this period came out quite naturally, without thinking of being in the closet. And it was across classes—many poor LGBT people were the ones who suffered most from prejudice because they didn’t have the safety that money buys. They were the ones really empowered by the Delhi high court decision.”

Meenakshi Lekhi, a Bharatiya Janata Party spokesperson and Supreme Court lawyer, said: “We welcome the decision of the court because it is important that Section 377 remains. It is not only women who can be exploited and harassed but men also get exploited so there is a need for a law to protect men too.

“If there is a law to protect women, how can there not be a law to protect men? What happens between people inside their homes is not being questioned but if there is a victim then the complaint should be addressed. Delhi has seen incidents where homosexuals have been attacked and killed. In 2004, two homosexual men were murdered in Delhi, so this law is needed so men are not harassed,” said Lekhi.

Within hours of the Supreme Court ruling, protesters gathered at Jantar Mantar in central Delhi to demand back the rights of the LGBT community.

A giant rainbow flag, hanging from a neem tree, formed the backdrop at the allotted venue in Delhi’s protest square.

Explaining why he was chanting Humko chahiye azadi (we want freedom), Dipankar Dey, a law intern, said, “I’m here because I’m gay and this ruling affects me. Now if I have sex with my boyfriend, I can be arrested by the police.” Invoking an iconic gay American politician, the young intern said, “It’s time to move beyond activism. We need action. We need a Harvey Milk.”

Standing alone wearing a black bandana, Jasmine, who works in an NGO and chose to give only her first name, said, “I’m one of the allies of the LGBT community and today I’m disappointed and disgusted. But we have come so far, so close to the real freedom, that now we cannot afford to go back.”

Nobody at Jantar Mantar seemed prepared to go back into the closet—though some had their faces covered with scarves to avoid being photographed.

Protesters held up placards with slogans like ‘We are not criminals’ and ‘Nelson Mandela was on our side’.

Journalist Lesley Esteves, one of the pioneers of Delhi’s gay movement, shook her head, saying, ‘This is terrible”.

Watching the protesters, Dev Sanyal, a supporter of the Aam Aadmi Party which held a victory celebration nearby, said, “What these people are demanding is against nature, against religion. We cannot support them.”

Jostling amid a pressing crowd of TV journalists, Raja Bagga, a law researcher said, “Although legal sanction to gay sex is symbolic, it means that you are on the law’s right side, and this is a safeguard against potential harassment. In today’s judgment, the court hasn’t outright rejected our rights but it has asked us to go to the Parliament. Technically the judges might not be faulted, but they did have the power to address minority rights on their own.”

Elizabeth Roche, Gyan Varma, Mayank Austen Soofi, Seema Chowdhry, Nikita Mehta, Sanjukta Sharma and PTI contributed to this story.

First Published: Wed, Dec 11 2013. 09 06 AM IST

13th Dec., ’13: DushyantPriya

Dushyantapriya -2 Act Marathi Play

Language : Marathi

Duration : 2 hrs

Genre : Drama

“Out beyond the ideas of wrongdoing and rightdoing, there is a field! I will meet you there”, says the 13th century poet Rumi. Taking the same line of thought and attempting to break boundaries of conventions of love, marriage and gender stereotypes, Dushantapriya is an inspiration from Kalidasas Sanskrit play Abhigyan Shakuntalam written by Sarang Bhakre.

Fri 13 Dec 2013
Damodar Hall: Parel
N. M. Joshi Vidya Sankul, Dr. B. A. Rd., Parel, 400012,

Ticket Price Rs. 150 – Rs. 200

Book My Show

A review by Dr. Devdutt Pattanaik: Beloved of Dushyant

Wentworth Miller’s Bold Show of Support for LGBT Rights


Actor and screenwriter Wentworth Miller, best known for his role on the Fox series “Prison Break,” came out as gay on Wednesday in an open letter in which he declined an invitation to be a guest of honor at the St. Petersburg International Film Festival in Russia.

Citing Russia’s recently enacted anti-gay “propaganda” law, Miller, 41, said he “cannot in good conscience participate in a celebratory occasion hosted by a country where people like myself are being systematically denied their basic right to live and love openly.”

In a letter to festival director Maria Averbakh, and published by GLAAD, Miller, writes:

Thank you for your kind invitation. As someone who has enjoyed visiting Russia in the past and can also claim a degree of Russian ancestry, it would make me happy to say yes.

However, as a gay man, I must decline. I am deeply troubled by the current attitude toward and treatment of gay men and women by the Russian government.

The situation is in no way acceptable, and I cannot in good conscience participate in a celebratory occasion hosted by a country where people like myself are being systematically denied their basic right to live and love openly.

Perhaps, when and if circumstances improve, I’ll be free to make a different choice.

“Wentworth’s bold show of support sends a powerful message to LGBT Russians, who are facing extreme violence and persecution: you are not alone,” said GLAAD spokesperson Wilson Cruz.

“As people from across the globe continue to speak out against Russia’s horrific law, more celebrities and corporations should follow his courageous lead in openly condemning Russia’s anti-LGBT law,” added Cruz.


Analysis: A cure for HIV?

By James Gallagher Health and science reporter, BBC News

A baby girl has been “functionally cured” of HIV in the US. The difference it will make to her life could be huge – avoiding a lifetime of medication, social stigma and worries about whether to tell friends and family.

But beyond the personal story, there is a huge question – does this bring us any closer to an HIV cure?

There are very special circumstances involved in the US case. Doctors were able to hit the virus hard and early. This is not possible in adults, who will acquire HIV months if not years before they find out.

Even in the UK, where at-risk groups are offered free regular testing – one in four people with HIV is unaware they have the virus. By the time they find out, it will be fully established – hiding away in reservoirs in the immune system that no therapy around can touch.

It is also unclear how a newborn’s immune system, babies still get much of their protection from their mother through breast milk, may affect treatment.

One thing is certain – this approach is not going to provide a cure for the vast majority of people with HIV.

So what about about somebody who has been living with HIV for a decade? Any hope of a cure for them?

The first thing to note is that HIV is not the killer it used to be.

It first emerged in Africa in the early 20th Century and became a global health problem by the 1980s. In the early days, there was no treatment, never mind talk of a cure.

The virus claimed the lives of more than 25 million people in the past three decades, according to the World Health Organization.

Then, good antiretroviral therapies emerged in the mid-1990s and the impact it had on the number of deaths was dramatic.
Aids deaths

People infected with HIV should have a near normal lifespan if they have access to treatment. Of course this is a big “if”. Nearly 70% of people living with HIV are in sub-Saharan Africa, where access to drugs is relatively poor.

HIV stands for human immunodeficiency virus and on its own it does not kill you.

The virus can survive and grow only by infecting, and destroying, the immune system.

This continual assault on the immune system makes it weaker and weaker until it is no longer able to fight off infections.

Without treatment, it takes about 10 years from infection to the development of Aids – acquired immune deficiency syndrome.

It is then that “opportunistic infections”, ones a healthy immune system could fight off, become deadly.

People can die from pneumonias, brain infections, diarrhoeal illnesses as well as certain tumours such as lymphoma and cervical cancer.

The hunt is on for a cure.

“We had always assumed that it was impossible, but we’ve started to discover things we didn’t know before and it’s opening up a chink in the armour,” Dr John Frater, from the University of Oxford, told the BBC.

“A cure is something we can no longer write off as impossible.”

After HIV first infects the patient, the virus spreads rapidly, infecting cells all over the body.

Then, the virus hides inside DNA where it is untouchable.

But there are now experimental cancer drugs that might be able to flush the virus out and make it vulnerable.

Dr Frater said: “It turns on a virus inside a cell and it becomes visible to the immune system and we can target it with a vaccine.”

However, this approach requires drugs to make the virus active and a vaccine to train the immune system to finish it off – this is not just round the corner.

“We are a long, long way away, in truth,” said Dr Frater.

There is another route being considered – involving a rare mutation that leaves people resistant to HIV infection.

In 2007, Timothy Ray Brown became the first patient believed to have recovered from HIV. His immune system was destroyed as part of leukaemia treatment. It was then restored with a stem-cell transplant from a patient with the mutation.

A little bit of genetic engineering may also help to modify a patient’s own immune system so that it has the protective mutation. Once again this is a distant prospect.

Chairman of the UK-wide Aids vaccine programme Prof Jonathan Weber, from Imperial College, said: “For established infection we have some ideas, but it is all in the realms of experimental medicine.

“There is no consensus and no clear way forward.”

Is a world without Aids possible?

He added a cure would be very cost-effective, as giving people drugs every day of their life was expensive.

Prof Jane Anderson, consultant at Homerton hospital in London, expressed caution about expecting a cure after the case in the US.

“This is a very exciting moment, but it is not the answer in today’s world.

“I’m worried that we so desperately want a cure that we forget the cost-effective stuff that does make a difference.”

Nearly every case of mother-to-child transmission can be prevented by drugs, caesarean section and not breastfeeding. And in adults, most cases are as a result of unsafe sex.

HIV really is an infection where prevention is much easier than cure.