Making criminals of us all

Menaka Guruswamy

The 377 judgment is not about gay sex alone. It bans 'unnatural' sexual acts, irrespective of gender, age or consent.

The judgment in Suresh Kumar Kaushal vs Naz Foundation (Kaushal) does not only criminalise "gay sex", as has been widely reported. Undeniably, the judgment ignores the constitutional rights of millions of LGBT Indian citizens (as opposed to what Justice Singhvi calls the minuscule LGBT community and their "so-called rights"). However, Kaushal criminalises certain sexual acts performed by same- and opposite-sex couples that can be classified as "carnal intercourse against the order of nature".

What are these acts, we may ask? According to the court, "the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed". The court then refers to a series of cases that involved the commission of these criminal acts. These include cases like R vs Jacobs (1917), which deals with the commission of sodomy, and Khanu vs Emperor (1934), which deals with carnal intercourse with a bullock. Further, the judgment refers to a series of cases that relate to anal sex being performed on young boys in Lohana vs the State (1968), Fazal Rab Choudhary vs State of Bihar (1982) and Kedar Nath vs State of Rajasthan (1985). Finally, the court referred to Calvin Francis vs Orissa (1992), which involved forcing a six-year-old child to perform oral sex.

Justice Singhvi relies on these cases to conclude that the acts that fall within the ambit of Section 377 "can be determined with reference to the act itself and the circumstances in which it is executed". The judges rightly reason that these cases all deal with non-consensual and coercive situations. They observe that they "were apprehensive whether the court would rule similarly in a case of proved consensual intercourse between adults." However, they use this alleged apprehension to conclude that it is difficult to prepare a list of acts covered by the section. Strange, given that the precedent points to coercive sex involving children or animals as being the problem, and not simply acts of anal or oral sex.

... contd.

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