consensual sex | Impressions

By T. V. Antony Raj

During the reign of Henry VIII, the Parliament of England passed The Buggery Act 1533. Thomas Cromwell, the chief minister to the King was the brain behind it.

This Act defined buggery as an unnatural sexual act, “the detestable and abominable Vice of Buggery committed with Mankind or Beast” against the will of God and Man. It was England’s first civil sodomy law. Earlier, the ecclesiastical courts dealt such offences before. This Act was later defined by the courts to include only anal penetration and bestiality.

The Offences against the Person Act 1828 replaced the Buggery Act, but buggery remained a capital offence until 1861.

In 1861, during the British rule, the Indian Penal Code introduced Section 377, modelled on the Buggery Act of 1533. It makes sexual activities “against the order of nature”, illegal

377. Unnatural offences: 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

All over the world many still consider homosexuality as taboo and as a “deviant behaviour”. But lesbian, gay, bisexual and the transgender (LGBT) communities want homosexuality decriminalised.

On July 2, 2009, in response to a petition challenging the constitutional validity of Section 377 of the Indian Penal Code (IPC) which criminalized consensual sexual activities between homosexual adults conducted in private, the Delhi High Court struck down portions of Section 377 concerning gay sex as unconstitutional. The judgment held that Section 377 infringed upon fundamental rights under Articles 14, 15, 21 of the Constitution of India, and declared the section unconstitutional to the extent that it criminalized private consensual sexual activity between adults.

Some religious bodies challenged this judgment of decriminalizing Section 377 in the Supreme Court of India.

On December 11, 2013, in Suresh Kumar Koushal vs Naz Foundation case, the Supreme Court of India held that Section 377 providing punishment for gay sex was constitutionally valid and overturned the judgement of the Delhi High Court, thereby shutting the small window for gay rights opened by the Delhi High Court. The Supreme Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary.

On Saturday, November 28, 2015, speaking at the Times LitFest, late finance minister Arun Jaitley of BJP and his predecessor P Chidambaram of Congress came out in support of gay rights.

Arun Jaitley is the first leader from the BJP to have supported decriminalization of consensual sex among gay adults. Speaking in his capacity, he said, “When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi High Court’s view appears more acceptable.”

Speaking just afterwards, Chidambaram, who was also speaking in his capacity, said that the Delhi High Court verdict decriminalizing gay sex was a wonderful one and the Supreme Court should have stayed with it.

On February 6, 2016, a three-member bench of the Supreme Court reviewed curative petitions submitted by the Naz Foundation and others and decided that they would be reviewed by a five-member constitutional bench.

On August 24, 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttaswamy judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine.

This judgement was believed to imply the unconstitutionality of section 377.

In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment.

On Thursday, September 6, 2018, in the judgment given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R F Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra, the Supreme Court of India pronounced the much-awaited verdict on a clutch of petitions challenging the constitutional validity of section 377 of the IPC which criminalises consensual gay sex. It ruled unanimously in Navtej Singh Johar vs Union of India that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex.”

However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality stay in force.

RELATED ARTICLES

Buggery Act 1533 (en.wikipedia.org)
Sodomy (en.wikipedia.org)
Offences Against the Person Act 1828 (en.wikipedia.org)
NEW ARTICLE ON THE HISTORY OF BUGGERY AND THE UK PARLIAMENT (echrso.blogspot.com)
Section 377 of the Indian Penal Code (en.wikipedia.org)
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. (en.wikipedia.org)
Gay sex now a legal right: All you need to know about Section 377 (hindustantimes.com)
Arun Jaitley & P. Chidambaram show rare unanimity, SC should decriminalize Gay Relationships (latestlaws.com)
Delhi High Court overturns ban on gay sex (in.reuters.com)
Indian court decriminalises homosexuality in Delhi (theguardian.com)
Delhi high court decriminalizes homosexuality (livemint.com)

. By T.V. Antony Raj

Every year, around 700,000 visitors from around the globe visit the Maldives, lured by its pristine beaches. However, this paradise nation has become increasingly conservative in recent years due to influence of more fundamental forms of Islam.

In the summer of 2012, in the remote Feydhoo island in the Maldives, a police investigation after finding the corpse of a baby buried beneath an outdoor shower area outside the home of an unfortunate 15-year-old girl revealed that the teenager gave birth to her stepfather’s baby, which he allegedly killed and buried.

The teenager reportedly confessed to the police that apart from her stepfather she had consensual sex with another male. It is unclear whether the police has identified or charged this person. The police have charged the girl’s stepfather for raping her for years and murdering the baby she bore.

On February 25, 2013, a juvenile court in the Maldives, instead of sympathizing with the plight of the 15-year-old girl, has found her guilty of having “sex outside marriage.” The Court sentenced her to spend eight months under house arrest and to receive 100 lashes according to the Sharia Law when she turns 18, unless she requests it earlier.

This incident has triggered widespread worldwide condemnation.

Under the current laws of the Maldives, pre-marital sex is a crime and those found guilty are often flogged. Flogging as a punishment for this ‘crime’ directly violates international law, which completely prohibits cruel, inhuman or degrading punishments. Yet, flogging remains all too common in the Maldives. In 2009, the courts sentenced over 180 people for flogging for the ‘crime’ of fornication. Almost 90 per cent of them were women.

However, under the international human rights laws and standards, to which the Maldives is a signatory, ‘fornication’ is not a recognised offence and member states must not criminalize or punish young people who engage in consensual sexual activity, or are victims of abuse.

While visiting the country in 2011, the UN High Commissioner for Human Rights Ms. Navi Pillay called flogging “one of the most inhumane and degrading forms of violence against women” and she requested the Maldives to stop this barbaric practice.

Meenakshi Ganguly, South Asia director for Human Rights Watch, said: “The girl is already a victim and is traumatized. The authorities should be trying to protect her, not punish her.”

Mohammed Waheed Hassan, President of Maldives

President Mohammed Waheed Hassan of the Maldives is already feeling global pressure. The president’s office has released a statement saying that the girl is a victim to be protected and not punished by the government. A government spokesperson has also said that the Maldives are considering changing the law.

The Amnesty International UK / Blogs says:

If one good thing could come out of this case, it is that the international outrage prompted by this girl’s story and focus on the darker side of life in this seemingly idyllic holiday destination will convince the authorities to end the practice of flogging and decriminalise consensual sexual activity.