Institute of Legal Education

SODOMY LAWS

Author – Areej Khalid, Student at Jitendra Chauhan College Of Law

ABSTRACT

Sodomy laws have had a deep impact for LGBTQ community in past as these laws were made to directly or indirectly put an impact on the community. Many people thought that the section 377 of IPC which defines Sodomy and Sodomy law was vague and hence it was difficult to find the nature of this section. Many, on the other hand, had a perspective that this section has a discriminatory nature and was targeting the homosexual society. Keeping all the facts in mind The Supreme Court of India called this section unconstitutional. Nullifying of section 377 brings India a step closer towards achieving equality of all classes. It made life easier for sexual minorities although there is a long path to cover for social acceptance.

Introduction.

A law which defines certain sexual activities as illegal is known as Sodomy Law. These sexual acts are termed as ‘immoral’ and ‘unnatural’ by the court of law. In Sodomy law ‘sexual activities’ mainly refers to anal or oral sex or beastility. Beastility is a sexual intercourse between a person and an animal. Under various statutes and previous judgements of supreme court sodomy laws are considered as a crime against nature.

Legal definition of the word sodomy- the crime of oral or anal sexual contact or penetration between persons or of sexual intercourse between a person and an animal. Sodomy laws, in practice, usually weren’t used against heterosexual couples but against homosexual couples. This act targeted the homosexual couples. The difference between homosexual couple and heterosexual couple is that homosexual couples are attracted towards the same sex whereas heterosexual couples are attracted towards the opposite sex. Hence, these laws targeted the queer community popularly known as the Lesbian, Gay, Bisexual, Transgender, queer or questioning persons or the community.(LGBTQ). The term ‘gay community’ does not accurately defines the broadness of the community rather it narrows it down.

The sentencing of unnatural offence is that of am offence of rape. Unnatural offences cover sexual relations like oral and anal and in these offences consent is not a thing. Irrespective of the fact that both the parties were consenting if they engage into such acts they will be held liable. It was therefor stated by the Supreme Court of India that this section is very vague and unclear therefore it is difficult to determine the nature of the act. Some might say it’s discriminatory as it targets homosexuals as a class.

In two judge bench, Delhi High Court stated that section 377 is unconstitutional as it violates the fundamental rights of consenting individuals. It is violative of fundamental right of life and personal liberty aa it effects the right of privacy of individuals. The ministry of Health and Family welfare was opposed to this decision as according to them the decision would hinder the anti HIV/AIDS efforts. On the other hand Former Finance Minister and BJP member Arun Jaitley said that “Supreme Court should not have reversed the Delhi High Court order which de-criminalised consensual sex between gay adults” and “When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed.”[1]

LGBTQ has a long recorded history in ancient india. Religion like Hinduism promote homosexuality where as religion like Islam and Christianity are strictly against homosexuality. Buddhism however, has no rigid view on the concept of homosexuality.

In order to understand the meaning of sodomy laws and how they are effecting us we need to first understand the concept of homosexuality.

CONCEPT OF HOMOSEXUALITY IN DIFFERENT RELIGION

HINDUISM & HOMOSEXUALITY

According to Hindu teachings, homosexuality is not a sin. Hinduism’s view on homosexuality changes with texts to texts. There are various groups opposing homosexuality where as many ancient texts have been found where there is evidence of presence of homosexuality in that period hence proving it is not a sin in hinduism.

Many ancient paintings, sculptures narrative myths representing same sex attraction in Hinduism have been found. Famous mythological figures like Ila, Shikhandi, and Brihannala, who serve as stand-ins for homosexual groups and stories are also present in hinduism.

Agni, the god of fire, wealth, and creative energy, had same-sex sexual encounters with other deities, including sperm consumption. Despite the fact that she married Goddess Sh, Agni is shown to be having a same-sex relationship with the moon deity Soma.

In Krittivasa Ramayana, it is mentioned that two Queens had a child together. In the era of Maharaja Dilip there were no heirs and after his death it became a great concern for the demigods. Shiva ordered the King’s two widowed wife’s to make love and with his blessings they will conceive a child together. According to some, when both the queens fell in love, The god of love bestowed a child upon them. The child was born boneless but with the blessings of Lord Shiva the child was treated.

In Tamil Mahabharata, Krishna took form of Mohini and married Aravan. The motive for doing this was to make Aravan experience love before he dies.

Also according to a Kashmiri Book Parvati’s menstruating blood was consumed by her handmaiden Malini who later gave birth to Ganesha.

From all the above examples we can conclude that the concept pf Third gender exists in Hindu mythology from a very long time. It includes all the categories like females having masculine features, males having feminine features, etc. Hindu mythology normalises the concept of Third gender in our society.

In Smriti the sage named his son Bhagirath because he was born with two vulvas.

Homosexuality and Islam

Islam is a very diverse religion still at some point it is not open to homosexuality. In many Islamic countries homosexuality is still not legalised in fact in many countries like Saudi it is a punishable offence where you get punishable by death. But on the other hand some countries like Turkey, homosexuality is legal and is not considered a crime.

However in islamic holy book Quran there is mention of homosexuals.

In Quran homosexuality is mentioned in surah lut. In this surah was mentioning of one of the Prophets of muslims who sermonised against homosexuality. Prophet Lut was against homosexuality and asked people of how they can sleep with same sex partners and not the partners that god has created for them.

Prophet Mohammad one of the well known prophets in Islam was also against homosexuality. He used homosexuality as an example to explain people who among them are sinner. He said “ Doomed by God is who does what Lot’s people did [ie homosexuality].”[2]

In Quran’s surah lut it is mentioned that homosexuality of people of those times made god angry and hence God commenced stone fall in those regions as ‘azaab’ or punishment. In islam homosexuality is considered immoral.

Homosexuality and Buddhism

Buddhist’s concept towards homosexuality is complicated. Some Buddhist who follow early buddhist teaching are against homosexuality. Some buddhist are not against homosexuality but they are against sexual activities in general. Buddhism is the religion of equality hence its equality principle makes it neutral towards people of ‘third gender’. There is no evidence of anti homosexuality against buddhist but ‘sexual misconduct’. Among Buddhism there are variations of opinion relating to homosexuality.

In 4^th century BCE , male monks were not allowed to have sexual relations with anyone whether its, male, female or same gender. Some buddhist interpret that even vaginal sex came under sexual misconduct. This non vaginal sex issue

According to Gampopa, master of Kygo school, oral and anal sex whether with a man or woman is prohibited. Longchenpa stated that use of hands for sexual activities, at any part of body, is inappropriate.

Chinese Buddhist Hsing Yun has stated that Buddhism should never teach intolerance towards homosexuality. According to him If buddhism believes in concept of equality then people having sexual desires towards same sex should also be treated equally and that people should expand their minds.

Another famous chinese buddhist Hsuan Hua stated that plants the seeds that lead to rebirth in the lower realms of existence”.

Some well known Buddhist leaders in Taiwan initiated movements to legalise same sex marriage rights. As a result in 2019 Taiwan legalised same sex marriage.

Homosexuality and Christianity

Christians are strictly against homosexuality and adultery because their bible doesn’t permit them to engage into such activities. Most Christians denominations have considered this as a sinful act. Even though the denomination holds a different view, in today’s time, many people hold different view regarding homosexuality now. Some Christians believe that biblical teachings have been misinterpreted. These biblical teachings are not against homosexuality.

There are two types of church in christians – Catholic Church & Orthodoxy Church. Both the catholics and orthodox Christians consider homosexuality as a sin. However many mainline denominations have protested in favour of homosexuality.

OVERVIEW OF UNNATURAL OFFENCES

SECTION.377– 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 ten years, and shall also be liable to fine. [3]

Explanation of Section 377

Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[4]

Comment

This object of this section is to punish the offence of sodomy, buggery and beastility. It states that any man or woman has sexual intercourse against the order of nature or in some unnatural manner will be guilty under this section.

Even if a man puts his penis on the mouth of a boy and the semen gets discharged in the buccal coitus the person was held guilty under section 377, I.P.C

Rape is also an unnatural offence. Even little degree of penetration is enough and it is not necessary to prove the completion of the intercourse by the emission of seed.[5]

SODOMY AS DEFINED IN IPC

An offence of Sodomy are punishable under Section 377, I.P.C. However offence to sodomy requires a little penetration. Therefore an attempt to commit this offence is attempt to propel the male organ into the anus of the other person whether male or female or animal. Some activity on the part of accused in that particular direction ought to be proved strictly. A mere preparation for the operation should not necessarily be constructed as an attempt. But where there is an intention on the part of accused to satisfy his lustful desires by carnal intercourse against the order of nature and he had also done necessary preparations to satisfy his lust, but before he could propel his organ in, he ejaculates by himself, then in such situations no offence of attempt to commit sodomy is committed.

If an accused causes a physical injury to the complainant by inserting a vibrator into her vagina, Holding the accused guilty it was held that the prosecution here was to prove either that the appellant intended to, or that he actually foresaw, his act might cause physical injury to some person albeit harm of a minor character. [6]

SODOMY AS DEFINED UNDER ENGLISH LAW

This offence under English law is dealt with Sexual Offences Act, 1956 which provides in effect that to commit a crime is a misconduct punishable with imprisonment for life. An attempt to commit a crime is a wrongdoing punishable with imprisonment for ten years. The offence can be committed by a man with a man, or woman or an animal. Any person who has attained the age maturity and is old enough to be criminally responsible and who consents to the commission of this act is also liable for punishment as a principal.

The offence of buggery is having sexual intercourse through anus by a man with a man or with a woman or with an animal. The sexual intercourse of a man or a woman with an animal is regarded to as bestiality.

In England, under Sexual Offences Act,1967 buggery is no longer an offence if done in private between two consenting adults of and above the age of 21. However this act was hugely criticised even in England as a right to suppress illicit sex.

In a case the accused was convicted of indecent assault committed during a period of 20 years and offences related to young boys at a school at a school where accused was head teacher. He appealed that offence should not be joined and trued together as there was a long different of time period and the acts were incapable of being a part of series of events. In this case there was no past linking between them.

But if the accused is charged of indecent assault and the evidence shows buggery, the court should sentence without reference to buggery, in accordance with general principal that a sentence should not be based on graver offences if the conviction is of lesser offences.

HISTORY OF SODOMY LAWS IN INDIA

Act of Sodomy was prosecuted in England under British Common Law. It was codified in India under British empire as Section 377 in Indian Penal Code. This act was codified as “carnal intercourse against the order of the nature” in 1860. The law was used to prosecute people who would engage into any sexual activity which is not vaginal.

Thomas Macaulay in 1838 introduced section 377 in Buggery Act, 1533. It came into force in 1860. In Buggery Act the word buggery is defined as unnatural sex or sex which is unholy. These acts were considered to be against the principle of natural justice. These sexual activities included oral sex, anal sex, and beastility. This law came into force to prevent colonies with christian majority from corruption.

In 1991, ABVA published a report titled “Less than a Gay”. In the report was a demand for queer rights. It was the first report to be published publicly demanding for queer rights. In 1994 the AIDS BEDHBHAV VIRODHI ANDOLAN (ABVA) challenged authorities of prison to ban the distribution of condoms at Tihar Jail. In its response, first lady IPS Officer claimed that 2/3^rd of inmates in Tihar Jail are engaged in homosexual activities and banning of condoms would help reduce the homosexual activities. [7]

In 1998, Nandita Das and Shabana Azmi starred in a film named ‘Fire’ directed by Deepa Mehta which portrayed Lesbian relationship. This film became a big controversy all over India. Many protest like boycott the movie, and some private entities protested against the movie.

BUCCAL COITUS

An act of thrusting male organ into victims’s mouth with the intention for committing sexual intercourse for the purpose of satisfying the sexual appetite would be an act punishable under Section 377, I.P.C

In a case, a five year old girl was sexually assaulted by a man and it was proved by medical evidence also. The man was convicted under section 377 as he had only put his penis on her mouth and not under section 376(f). Compromise between both the parties reduced the punishment of the convict. The case was of Swamiji of Mutt who had committed unnatural offence on a 7 year old local boy of Mutt.

In another case an accused harassed two girls of age 7. The accused kissed and fingered their private parts and then tried to put his penis inside their private parts but was unable to do it. He then put his penis inside the mouth of both the girls turn by turn and ejaculated semen and peed on their mouth, as a result both the girls started vomiting. In the case it was held that the facts were sufficient to convict the accused under section 376 & 377 of IPC.

In another case the accused pulled a nine year old in the bush and attempted sodomy. The accused was convicted under section 377 of IPC.

EVIDENCES REQUIRED

Medical Examination plays a very important rule in proving section 377. However there must be an allegation about having an illicit relationship with some person. There statement will also play a very important role in such cases.

In a case the prosecution stated that coitus was completed through anus but Civil Surgeon did not find any marks of injury but he stated further that the boy was quite grown up and in such cases the marks of injury might vanish. In this case the side of the defence got heavy.

According to Modi’s MEDICAL JURISPRUDENCE & TECHNOLOGY if the passive agent is not accustomed to sodomy, damage to surface caused by rubbing something very hard against the anus or pain in walking all these are likely to appear. These injuries are extensive and well defined in cases where there is great where there is great disproportion in size between the anal orifice of the victim and the virile member of the accused. Hence there injuries will be more marked in in children while they maybe not present in the adults also if these injuries are not serious then they heal very quickly.

According to GLASTER’s MEDICAL JURISPRUDENCE & TECHNOLOGY, the following injuries may be notices in the passive agent, a recent laceration (a cut on skin), bruising or inflammation of anal mucous membrane. [8]

In Mihir v. State of Orissa the complainant who was a minor went to a tailoring shop where the tailor had anal intercourse with the minor. In medical examination no evidence were found in relation to anal intercourse because the examination was done after 30 hours of committing the offence. The evidence of the victim girl as described by her was satisfactory even if its minutest details, and nothing has shown to warrant that she had falsely implicated the accused at cost of her own dignity. Where the eye witness account is credible and trustworthy, medical opinion pointing two possibilities is not accepted as conclusive.

SENTENCING

The consent of the parties for committing sexual acts that are considered unnatural is not required. It means that even consenting parties committing unnatural offence are equally responsible for the breach of a constitutional section.

The punishment for unnatural offences are as serious as those of rape. These sentencing might include life imprisonment or imprisonment for upto 10 years plus fine.

Age of the accused is considered to be one of the most important factor while sentencing. In Raju v. State if Rajasthan, the accused aged 20-21 yrs attempted sodomy in girl aged 9 years. The court sentenced the boy for 3 years as according to the justices attempting the case, the judge thought that it would be inappropriate for the boy to live in jail hence the court relocated her accordingly
The intention of the accused is also considered to be an important factor for sentencing the accused . In Ou v. State of Maharashtra, the accused trued to thrust his penis inside a 14 year old but was unable to do it as the child cried in pain and the neighbours and her mother came running. Hence the clear intention was stated. The justice in this case stated that it also depends on the severity and sentencing of the crime.
The consent of the parties is irrelevant in some cases its an alleviating factor. In Fazal Choudhary case, two men were engaged were engaged in consensual relationship but the lower court sentenced the accused for imprisonment of three years.

EFFECT OF SODOMY LAWS IN INDIA

According to general public Sodomy laws were made to target homosexuals. These laws criminalised anal & oral sex by calling them ‘unnatural’. Sodomy laws were part of larger body of law. These were derived from English law to prevent non procreative sexuality anywhere and adultery. Sodomy laws were mainly a justification for discrimination against the LGBT community. It infringed the fundamental right to privacy of two consenting adults. These laws were used to justify denying the rights for lesbians or gays or transgenders.

This section was challenged by NAZ FOUNDATION. In NAZ FOUNDATION v. NCT Of DELHI, two judge bench high court held that treating homosexual sex between consulting adults as a crime is clear violation of fundamental right. The verdict resulted in decriminalisation of homosexual acts involving consulting adults throughout India.

The court overviewed the Right to Dignity and Privacy under Right to Life and Personal Liberty (Article 21) of Indian Constitution and held that criminalisation of consensual gay sex is a violation of such rights.

It was also held that this section also violates Section 14 (Right to Equality) of Indian Constitution as it purposely targets the homosexual committee as a class.

Article 15 of Indian Constitution prohibits discrimination on the basis of ‘sex’. The court said that the word ‘sex’ here not only refers to biological sex but also sexual orientation.

The Court, however, did not strike down section 377 but declared it unconstitutional as it criminalised consensual sexual acts between adults in private. The court stated that judgement would hold unless Parliament chose to amend the law.[9]

Later on, The Supreme court in Suresh Kumar Koushal v. Naz Foundation overruled Delhi High Court’s verdict stating that Section 377 did not violate any fundamental rights and that it was legal. It was established that to determine a law unconstitutional it needs proof that the law is unconstitutional and is in breach of constitution.

In 2013, Justice K.S Puttaswamy AND ANR. v. Union of India and Ors the supreme court stated that the Right to Privacy is a fundamental right and the reasoning behind Suresh Koushal judgement is wrong. Section 377 was mentioned in the judgement as “discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.” [10] In a nine judge bench, Justice Chandrachud stated that section 377 was unconstitutional.

In 2018, Navtej Singh Johar v. Union of India the question on right to sexual privacy, equality, rights against discrimination and freedom of speech were raised. In response the Supreme Court delivered its decision on September 6, 2018 stating that section 377 is unconstitutional because it violated fundamental rights of liberty, privacy, and identity and this legalised homosexuality.

CONCLUSION

Homosexuality is a very wide term. Homosexuals means people who are attracted towards same sex or people who are sexually attracted towards same sex or gender. Scientist haven’t found any exact cause of social orientation but they conclude this behaviour has a response from hormonal and environmental change.

63% of total Indian population speaks that homosexuals marriage should be legalised where as 47% or nearly half people speak that people are born straight, gay or lesbian it’s a sexual orientation which cannot be changed.

In many religion certain scriptures or doctrine are interpreted to strictly prohibit homosexuality like Christians and Muslims are against homosexuality because the interpretation of their holy book is against homosexuality. On the other hand, Hinduism in its mythological history has many evidences of presence of homosexuality.

Unnatural offences are offences which are against the order of nature. These include sexual activities other than vaginal sex. These activities include anal sex, oral sex, fingering. All of these activities are considered to be unnatural. Sodomy laws comes under unnatural offences. Sodomy laws are laws which govern the unnatural offences of individuals.

Hence Sodomy was defined as a law which is unnatural towards the homosexuals. Its nature was discriminatory towards homosexuals as a class. It indirectly infringed the rights of homosexuals. Right to privacy, right to life and personal liberty was highly discouraged under this act. Hence Supreme court observed and passed the verdict, stating that this section is discriminatory and unconstitutional.

References

[1] http://www.catchnews.com/national-news/most-indian-political-parties-back-lgbt-rights-a-rainbow-in-sight-1449397534.html

[2] Ibid 182

[3] Indian Penal Code, section 377

[4] Indian Penal Code, section 377

[5] Hughes, (1841) 9C & P 752

[6] IPC Section 377 Pg 2174

[7] https://thelogicalindian.com/amp/lgbtq/history-of-section-377-in-india-lgbtq-35940

[8] Mihir v State of Orissa, 1992 CrLJ 488

[9] Delhi Law Times, Pg 132

[10] https://www.nyayshastram.com/amp/sodomy-laws-in-india-and-the-us