In a historic judgment, the Delhi High Court amended section 377 of the IPC on 2^nd July, 2009. It decriminalised adult consensual sexual activity. Rushalini Rajkumar writes.

Section 377 of the Indian Penal Code reads:

'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 10 years and shall be liable to fine'.

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

In an historic judgment, the Delhi High Court amended section 377 of the IPC on 2^nd July, 2009. It decriminalised adult consensual sexual activity. A Bench comprising Chief Justice A P Shah and Justice S Murlidhar said, “We declare section 377 of IPC, in so far as it criminalises consensual sexual acts of adults in private, as violative of Articles 14, 15 and 21 of the Constitution."

It was a petition filed by Voices Against 377 and Naz Foundation (India) Trust that brought about the High Court ruling. This was passed amidst two contradictory affidavits filed by the Ministry of Home Affairs and the Ministry of Health and Family Welfare. The Home Ministry cited public morality as its prime argument to retain the section while the Ministry of Health insisted on reading down of the section because it hampered HIV/AIDS prevention efforts.

This section came into place along with the rest of the Indian Penal Code in 1860. These offences were considered harmful to the entire society and not only to the victim. Therefore so far, the issue of consent between the partners was considered irrelevant with regard to Section 377.

The law considered only penile vaginal penetration as ‘natural’ and it not only ignored all other sexual interaction but also criminalized it. Section 377 started of by saying ‘Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section’. It can be assumed that it initially probably intended to focus on sodomy or anal intercourse. However, due to the interpretations of the various judges in accordance with different cases it had broadened its scope of application independently and when read with other sections of the IPC. Over time, the section had come to criminalize acts of oral as well as anal sex with a minor as well as an adult. Also, oral sex whether it is performed between two men or two women or between a man and a woman was an offense under this statute.

It is very important to note that this section only penalized certain sexual activity and not any sexual orientation or identity i.e. being a homosexual or bisexual by itself was not a crime. But this law made the Lesbian, Gay, Bisexual, Transgender (LGBT) population a criminal subject fit to be harassed and ensured invisibility in the civil law as a rights holder.

While this amendment was a first step in the right direction in empowering this marginalized community it is now essential for the state to enact specific laws to govern certain non-consensual sexual activities which were and will continue to be prosecuted under this section. Child sex abuse, especially male child sex abuse and cases of male rape and further cases where sodomy is forced upon a married woman (since, the rape laws in India only recognize penile-vaginal sex). With this regard the 172nd Law Commission Report suggested making the laws on rape gender neutral by replacing the term ‘rape’ with ‘sexual assault’. This would also solve the issue of same-sex assault.

Clearly, this progressive judgment has been passed in opposition to the prevailing majoritarian belief system. This is a step towards achieving equality by acknowledging the diversity in sexual and gender orientation, by decriminalizing certain sexual acts which are against the dominant ‘norm’.

Decriminalization alone is not a panacea to liberate the community rather the attitude toward them should change through the entire gamut of laws. Further, legal reform should be complimented with societal acceptance but legal reform could not have waited for universal acceptance since this law posed a threat to the very existence of an entire community.