In Focus

'Section 377' - Is It Anti-Gay?

Akshay C Shetty (MACJ, KC College, Mumbai)

“Nearly 1,500 arrested last year under India’s anti-gay law”, the very sight of this statement immediately made me pass a personal judgment which clearly defined India as regressive, archaic & anti-gay. If that’s what this article ( aimed at doing, then it succeeded in doing so.

Citing Section 377 of the Indian Penal Code as “India’s colonial-era anti-gay law” whilst drawing reference from the Times of India & Equal Eyes; for a Student of Journalism taking his infant steps into Media, it seemed absolutely fine to me. But this time around instead of flicking to another article immediately, my curiosity made we want to know more & understand as to how worse the situation is with Section 377 & how legally oppressed the LGBT community in India is. But therein lays the crack in my foundation, the two subjective assumptions, first that the situation with Section 377 is ‘Worse’ & second that the LGBT community is ‘Legally Oppressed’ in India.

It is essential to first understand what Section 377 of the IPC states.

Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 2[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years and shall also be to fine.
Explanation - Penetration is sufficient to candidate the carnal intercourse necessary to the offence described in this section.
Punishment: Imprisonment for life, OR imprisonment for 10 years and Fine: Cognizable-Non –Bailable-Triable by Magistrate of the first class. –Non-compoundable.

What I infer from the above is that the law is Gender Neutral, i.e. it applies to all persons irrespective of their sex or sexual orientation. What this means is that a Heterosexual Individual is equally liable for the punishment as is a Homosexual Individual. Also, that it is not the mere Intent or State of Mind which is punishable, but the physical act involving Carnal Intercourse against the Order of Nature itself. Thus the mere declaration by oneself as to being Lesbian or Gay does not attract Section 377.

As to the inclusion of Sexual Acts with Animals under Section 377, multiple instances in the past have made this Section prove effective time and again.

Calf Raped in Chennai:

Dog Raped in Kochi:

Sex with a Cow:

Compiled Article of similar cases in India:

While it goes without saying that Gays involved in sexual acts automatically fall into Section 377; the picture painted by multiple media houses about the LGBT Oppression in India must mean that there is a plethora of documented proof of LGBTs being hunted down and charged with Section 377 across the country. To everyone’s surprise, there are no instances where the police have taken action suo moto against anyone from the LGBT community in particular. This indicates that Section 377 over the years has only been applied when there has been a complainant.

Delving into statistics, the NCRB 2015 report reveals that of the 1347 cases registered under the offence, 814 involve Minor victims. Thus there exists the possibility that these 814 cases (w.r.t. 2015) under Section 377 might as well coincide with Protection of Children from Sexual Offences Act 2012. Statistics on this possibility is not available, but it cannot be ruled out completely given the intent of both the laws extends to protection of minors in one way or the other.

A notable aspect of this report is that of the total number of people who’ve been under trial under Section 377, i.e. 3249, 3217 are Males & 32 are Females. Thus less than 1% of those facing trial under Section 377 are Females (both adults and minors included). One can thus infer that females in India commit unnatural offences in the rarest of rare occasions; this dwindles down the allegation that Lesbians are being targeted to say the least. The report also states that in the year 2015, only 3 Individuals of Foreign National were arrested under Section 377, while in 2014, none. This easily suggests that Foreign Nationals are not really being targeted in India under Section 377 as suggested in articles like these:

For someone to directly conclude that the LGBT community is being exclusively picked at by using Section 377 there needs to be substantial crime records saying so. The NCRB Statistics of both 2014 and 2015 give an exact count for the number of people Arrested, Under Trial, Convicted, Acquitted, and so on and so forth along with the exact Gender & Age Wise sub divisions; that said, it does not give an exclusive count of the number of Individuals based on their Sexual Orientation. This means that a Male Bisexual involved in Gay Sex would be categorized into the Male Sub division along with a Male Heterosexual involved in Bestiality.

The constant misuse and inter-play between the terms ‘Unnatural Sex under Section 377’ & ‘Homosexuality’ by leading media houses is what has led to an amplified bias against the law itself. Given I have clarified that Section 377 does not explicitly target anyone from any community, let us now take a glaring example of a biased article.
The title of this article from Deccan Herald reads, ‘600 Homosexuals arrested in 2014’ whilst drawing its data from the NCRB Report 2014, but the Deck of the article conveniently contradicts the title by saying ‘600 People arrested Under Section 377’. This is but one example out of the many which are available across multiple media outlets which conveniently play with the terms ‘Homosexuality’ & ‘Unnatural Offences’ thus creating an obvious bias for the reader given that the latter is a much broader term than what it is usually interpreted as.
Additional Example:

The sense of LGBT oppression is further instilled amongst the readers with headlines such as these,, which speaks of ‘Gay Club Members’ being held, the article on the other hand explicitly states that the IPC Sections in play are sections 419 (punishment for cheating by impersonation), 506 (punishment for criminal intimidation) and 384 (punishment for extortion) along with section 66 C of Information Technology Act.

Speaking strictly based on facts & statistics alone, there is no existing proof of LGBT Community being specifically targeted under Section 377 of the IPC. A massive media bias which exists to serve the popular opinion has led to the misinterpretation of facts & figures to such an extent that a law which is Gender Neutral & Humanitarian with multiple dimensions to it is now perceived to be anti-gay, archaic & regressive by the entire country.

This piece was to essentially discuss upon the actual interpretation of Section 377, Unnatural Offences & the data provided by the NCRB. Social norms & constructs prevailing in the society, for or against the LGBT community is a completely different issue with a separate vertical of thoughts. My inferences and understanding are solely based on facts along with black and white interpretations. To end this piece on an interesting note, I think this time the quote got it right, ‘A Lie Told Often Enough Becomes The Truth’.

(This article has been submitted by a Media student as an assignment and is being published verbatim, gratis and in good faith)