The love that dare not speak its name

On 27 November 1835, James Pratt and John Smith were convicted of the crime of “buggery”, and became the last people to be executed in England for committing a truly victimless crime. In 1553, during the reign of Henry VIII, the Parliament of England had enacted “An Acte for the Punishment of the Vice of Buggerie”. Popularly known as the Buggery Act, it made “buggery” punishable with “such pains of death, and the losses and penalties of their goods chattels debts lands tenements and heriditaments as felons may be accustomed to…”.  Re-enacted and repealed in between, the Act was reinstated in 1563 by Queen Elizabeth I.

In 1828, the Buggery Act was repealed, and replaced with the “Offences against the Person Act, 1828”, which provided that “Every person convicted of the abominable crime of buggery, committed either with Mankind or with any animal, shall suffer death as a felon.”  In that same year, the English parliament also enacted the Criminal Law (India) Act, 1828, which applied the “wholesome alterations... lately made in the Criminal Law of England… be extended to the British Territories under the Government of the United Company of Merchants of England trading to the East Indies…”  And thus the “sin of sodom” was made a capital offense in India.  

The judgment of the Delhi High Court was an elegant solution

However, in 1860, the Indian Penal Code became the law of the land, differing from the Criminal Law (India) Act of 1828 in fundament. The new law did not speak of buggery but spoke instead of “…carnal intercourse against the order of nature with any man woman or animal...”  

In 1861, the English Parliament enacted the Offences against the Person Act, and buggery was no longer punishable by death. The punishment for “sodomy and bestiality” was “penal servitude for life or for any term not less than ten years”. Interestingly, the punishment for “carnally knowing a girl under ten years of age” ranged from penal servitude for life to punishment not exceeding two years. Thus, an act between two consenting adults was considered a greater threat to civil society, than raping a girl below the age of 10.  

In the Naz Foundation case decided by the Delhi High Court in 2009 the government of India had taken the stand that “learned ASG was at pains to argue that Section 377 IPC is not prone to misuse as it is not enforced against homosexuals but generally used in cases involving child abuse or sexual abuse”.  With the enactment of the Protection of Children from Sexual Offences Act, 2012, and the amendments in the IPC in relation to the crime of rape, this argument of the Government is no longer tenable.   

The Delhi High Court’s judgment was unambiguously clear: “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.”   

The key words here are “consensual” and “adult”. With the introduction of “other” as a gender preference, all sorts of relationships are possible.  It would be downright inhuman to give a person the right to declare their gender orientation as “other”, but refuse them the right to practice this “other” sexuality. The words “against the order of nature”, seen from a three hundred year old perspective, or tested against Victorian morality, cannot be the yardstick to measure relationships in the present day.  

The judgment of the Delhi High Court was an elegant solution. It did not strike down Section 377 as unconstitutional, for to do so would leave sexual assault of animals and adult males unpunished. In interpreting the law, the Delhi High Court has merely taken the prying eyes of the government out of the bedrooms of consenting human adults, whatever their gender, sexual identity or sexual orientation.

In a way, the issue now pending before the Supreme Court has already been decided. In the recent “Right to Privacy” judgment by nine Judges of the Supreme Court, four judges of the Court have observed that “sexual orientation is an essential attribute of privacy…”.  

While the validity or scope of Section 377 was not the issue before the court in the privacy judgment, it would be very surprising if the judgment to come differs from what the court has already indicated, since four judges have already stated that “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”

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The author is a lawyer practicing in Delhi