UNNATURAL OFFENCES IN SECTION 377 IPC
By Brigadier Chitranjan Sawant,VSM
The unnatural offences defined in section 377 of the Indian Penal Code have of late become talk of the town. The high and mighty, kings , captains and commoners feel the heat generated by the two judgements – one delivered by the Delhi High Court in 2009 and the other delivered by the Supreme Court of India in 2013. The High Court judgement had put a question mark on the legal status of section 377 IPC finding it ultra vires the Constitution of India thereby causing unprecedented jubilation among the community of LGBTs (read sexual perverts) in India. Unconfirmed reports say that it swelled the ranks of lesbians, buggers, transgenders and partakers of bestiality. However, when the High Court judgement was reversed by the Supreme Court within four years, the men and women relishing acts of unnatural offences went into mourning.
The Supreme Court of India did not find merit in the observation of the Delhi High Court that the penal provisions of the relevant section of the Indian Penal Code violated the law of liberty and equality granted by the Constitution of India. Justice GS Singhvi who delivered the judgement of the division bench on 11 December 2013 observed:
“We hold that section 377 does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the High Court is legally unsustainable.”
Their Lordships, therefore, allowed the appeal of the petitioners who had gone in appeal against the judgement and order of the Delhi High Court. One may say that in the lay man’s language the provisions of the law on Unnatural Offences as contained in the Indian Penal Code remain as enacted.
LAW BEYOND HOMOSEXUALITY
In the common man’s perception the section of IPC under reference deals with the offence of homosexuality among both males and females. However, the law goes beyond that and takes Bestiality under its ambit. Let us take a look at the law of the land dealing with Unnatural Offences. Section 377 IPC states:
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.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Taking a close look at the provision of law as upheld by the Supreme Court One finds that the ingredients are:
- 1. A person accused of the offence had carnal intercourse with man, woman or animal.
- 2. Such intercourse was against the order of nature; and
- 3. Such act by the person accused of the offence was done voluntarily.
In my opinion the Supreme Court has done a commendable job by upholding the law of the land as it exists today. It has left the doors open for a change, if desired, by the Legislature as it is beyond the competence of Judiciary to change the law that does not infringe the constitutional provisions.
The hullaballoo made by some ministers of the Union cabinet, who took a cue from the President of the Congress party and Mr Ignoramus therefrom, is absolutely uncalled for. As a matter of fact they have an eye on the votebank of the LGBTs who are drumming their large numbers and coercing some chicken hearted political persons to succumb to their threat and political blackmail. One may recall that the same coterie had pushed the Ordinance to have criminal-politicians seated in the Houses of Parliament even after the Supreme Court had found their continuance as untenable. It was Shri Pranab Mukherjee, President of India who expressed some reservations about the Ordinance draft put up to him by the present Congress led cabinet. They withdrew it post haste when the President of India felt uncomfortable with the text of the Ordinance. It is the same Congress party that wishes to bring another Ordinance to negate the judgement of the Supreme Court. An impartial political observer may think that the century plus old political party is digging its own grave.
There is an unwelcome chorus and cacophony of unintelligible sounds against the judgement of the Supreme Court because the offenders of section 377 IPC wish to have their own way and destroy the Indian ethos of yore. If some countries of Europe and America have legalized homosexuality it certainly does not mean that India should follow suit. It is understandable that some Indians who celebrate their birthdays in Europe wish to go by the European standards of homosexuality. Let them go their own way but they must not drag the rest of India that is still called Bharat. Bharat is Bharat and India is India; the twain shall never meet, borrowing from Rudyard Kipling, a change is made to suit the occasion.
The west-oriented politicians who were brought up and educated in public schools and spent their impressible years in boarding houses might have developed a fancy for homosexuality but they have no right to impose their will, whim and fancy on the millions of Indians who abhor homosexuality, lesbianism and bestiality. May I advise them to keep off the simple religious and God-fearing Indians and let them lead their own simple lives of innocence. Let the sins of Sodom not visit the believers in Dharma – be it Vedic, Christianity, Islam or what have you.
Maharishi Swami Dayanand Saraswati has in his magnum opus, Satyarth Prakash, dwelt on marital sex and giving birth to progeny. A healthy sex between the husband and wife is the only known way to have Santan to carry on the religio-social traditions. It is nowhere that the Rishivar has talked or written about lesbianism, sodomy or bestiality. Such thoughts were abhorrent to the Vedic ethos. Never was a mention made of acts that were sacrilege, leave aside indulging in them.
The Christian Church lays an emphasis on celibacy and exhorts its priests to obey it or quit the priestly order. I quite concede that many acts of sodomy committed by the Christian priests on the small boys attached to the Church for religious duties have come to light but they only call for a strict adherence to principles of Brahmcharya as ordained for the Ved Pracharaks or the Baudh Bhikshus.
Islam too abhors homosexuality and frowns on it. Leave aside bestiliaty, even sex out of wedlock is forbidden. No wonder among the petitioners against the Delhi High Court order legalizing homosexuality, representatives and men of religion of all faiths were present and were active participants.
THE FUTURE COURSE
The men and women of India who are untouched by the sins enumerated in section 377 IPC have hailed the judgement of Justice Singhvi and his brother judge Mr Justice Mukhopadhya. Those who demurred are the sinners who might not find a place in Heaven or Hell post mortem. Let us leave the sinners to their fate and buttress the pure house given to us by ISHWAR and sustained by following the tenets of the VEDAS and other religious scriptures as applicable to followers of their respective Faith.