GayBombay: Law panels OK with gays, but govt prefers ban




Law panels OK with gays, but govt prefers ban 25 Jun 2009, 1132 hrs IST, TNN

NEW DELHI: Two years after the gay rights movement kicked off around the world, India did the first review in 1971 of its colonial-vintage law criminalising "carnal intercourse against the order of nature." Now, when a gay march is due to be held this Sunday in Delhi, Kolkata, Chennai and Bhubaneswar to mark the 40th anniversary of the global movement, the Delhi HC is in the process of delivering its much-awaited verdict on whether section 377 of the Indian Penal Code should be "read down" to decriminalise private, consensual sex between adults. While making a case last year before the high court for retaining the archaic ban on homosexuality, government’s counsel P P Malhotra claimed that, despite having reviewed section 377 thrice since 1971, “none of the law commissions have suggested any change” in that provision. A closer look at the three law commission reports however reveals that they had, contrary to Malhotra’s submission, expressed reservations about section 377 and recommended various amendments. Consider the manner in which law commissions separated by over three decades sought to undo the anomalies of section 377 reflecting an evolution of their own understanding of this vexed issue: Fifth Law Commission in 1971: The first review of section 377, conducted by this panel headed by jurist K V K Sundaram, followed the repeal in 1967 of a similar ban on homosexuality in Britain. Much as it appreciated Britain’s new position that an act that fell in the realm of private morality and did no harm to others could not be penalised, the commission still felt that there were “a few sound reasons for retaining the existing law in India”. Adopting a conservative view, the commission was: “We are inclined to think that Indian society, by and large, disapproves of homosexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private.” Despite such reluctance to rock the boat, the commission could not help suggesting two significant reforms to section 377. It said that the heading of the provision should change from “unnatural offences” to “buggery”. Since unnatural offences have been defined to include not just buggery but also bestiality, the commission suggested that animals be kept out of the purview of section 377. Further, it said that the maximum penalty for buggery be reduced from 10 years to two years while prescribing a more severe penalty for paedophiles committing this offence. Fourteenth Law Commission in 1997: Headed by former Supreme Court judge K Jayachandra Reddy, this commission reiterated the need to amend section 377 so that its focus shifts from criminalizing homosexuality to cracking down on “the growing incidence of child sexual abuse”. It sought to serve this purpose by proposing a minimum sentence of two years for those who commit the offence on a person less than 18 years. Fifteenth Law Commission in 2000: The clearest signal to emulate the British precedent of decriminalising homosexuality came from this panel chaired by former Supreme Court judge B P Jeevan Reddy. For, it recommended that no sexual intercourse between adults, whether heterosexual or otherwise, should be penalised unless it was non-consensual. Accordingly, the commission proposed that the definition of rape should be made “gender-neutral” so that a non-consensual sexual act committed on a person of the same sex was also covered by it. As a corollary, it said that section 377 would have to go as homosexuality per se could no more be treated as an offence. “In the light of the change affected by us in section 375 (definition of rape), we are of the opinion that section 377 deserves to be deleted... (as) the only content left in section 377 is having voluntary carnal intercourse with any animal. We may leave such persons to their just desserts,” the commission said, with a touch of irony. The irony seems to have been lost on the government as its counsel made out before the high court that none of the law commissions over the years had ever called for any change in section 377.