Section 377 in our lives

Advice - Rights and Laws, Jan '14
By Kaushik Gupta

The Supreme Court’s verdict on Section 377 of the Indian Penal Code on December 11, 2013 turned many lives upside down. It created a situation of immense confusion about personal security among lesbian, gay, bisexual, transgender and other queer people. But rather than panic, it would be better to look at facts carefully and take informed decisions.

Reader queries

After the Supreme Court judgment on Section 377, can I get arrested for being a gay person?

Anonymous, Kolkata

Before the Delhi High court judgment of July 2, 2009, as the law stood then, particular sexual acts were punishable under Section 377 and not any sexual orientation. This amounted to a rather strange argument, that is, one could be of any sexual orientation but never engage in any so called criminal sexual activity in one’s entire life and thereby never break the law. So, the point of contention was specific sexual acts. After the Supreme Court judgment of December 11, 2013, the situation is back to what it was before July 2, 2009.

You cannot be arrested for being a gay person. However, you can be prosecuted if you publicly say and if it can be proved that you engage in penetrative oral or anal sex. Your voluntary admission of engaging in any criminal activity will amount to an extra-judicial confession. It is like confessing that you have committed a crime and an investigation can be initiated on the basis of such a confession.  

A public meeting to protest the Supreme Court verdict on
Section 377 IPC outside the Academy of Fine Arts, Kolkata.
Photo credit: Pawan Dhall

We are a happily married heterosexual monogamous couple. Are we in any way affected by Section 377?

Anonymous, Kolkata

Even with each other’s consent, if you decide to indulge in oral or anal sex in your bedroom and on your marital bed and, let’s say, such an act is secretly filmed by your next door neighbour, it can be used against you as a proof of commission of an offence under Section 377. Please remember you cannot plead violation of privacy because you are not permitted to do any criminal activity even behind closed doors!

We are a lesbian couple. Does Section 377 affect us?

RB, Kolkata

Section 377 is ambiguous and unclear. It does not indicate whether the penetration which is sufficient for an offence under the section has to be necessarily by a penis. If the state decides to prosecute you, it can interpret the law in a manner to include penetration of any bodily orifice even by the tongue or by finger. This law, in the hands of a persecutory state machinery, has the potential of gross misuse thereby violating the basic human rights of all citizens, irrespective of their biological sex, gender, sexual orientation or sexual practice.

Kaushik Gupta is a lawyer by profession, a photographer by passion, and happy to answer your queries on legal matters around gender and sexuality. Write in your queries to vartablog@gmail.com, and they will be answered with due respect to confidentiality.