July 12, 2018

[Link] IPC Section 377 Should be Read Down, Not Struck Off

Section 377 of the Indian Penal Code, infamous for criminalising homosexual acts, is the legal articulation of a traditional Judeo-Christian worldview (easily grafted onto conservative Indian thought) which has no place in the modern world. Even so, striking it down in its entirety would not be ideal, I argue over at Scroll.

Extracts

Section 377 of the 1860 Indian Penal Code is part of India’s colonial legacy. It criminalises homosexual acts using Victorian-era euphemism every bit as non-specific as the Biblical precepts it is supposedly in consonance with. [....]

Section 377 thus, in some circumstances, can accord relief to wives whose husbands rape them. Along with a 2017 Supreme Court ruling, which essentially held that sex with one’s wife is rape if she is less than 18 years old, this innovation forms the basis of judicial intervention which dilutes the marital rape exception enshrined in criminal law in India. [....]

That said, there are those who would suffer if Section 377 were completely struck down. It would therefore probably be prudent to read the provision down so that only those who voluntarily engage in “unnatural” acts without the consent of their partners can be targetted by it.

Having sexual offence law adequately recognise individual rights regardless of gender would require significant legal amendments, which are unlikely to see the light of day within the lifetime of most adults now alive. In the meantime, the least we should aim to do is ensure that tinkering with the law causes as little harm and as much good as is possible.

(Read the entire piece at Scroll: Rape laws: Why the Supreme Court must read down Section 377 – but not strike it down in its entirety )