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HC had said, “It is true that the theory that sexual intercourse is only meant for the purpose of conception is an outdated theory.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