Can heterosexual couples engage in sodomy and other similar sexual acts? Clearing the air post the S. 377 judgment

lgbtq

[A version of this article has been published in LiveLaw and can be accessed here]

This week shall forever be entrenched as historic, given the verdict of the Hon’ble Supreme Court of India in Navtej Singh Johar v. Union of India,[1] wherein it partially struck down the draconian Section 377 of the Indian Penal Code, thereby upholding the rights of the LGBTQ community. However, post the verdict of the Court, there seems to be a lack of clarity on certain issues. For instance, the question of whether this judgment allows people to engage in acts of sodomy which includes coitus per os (mouth contact with male gentalis) and cunnilinctus (mouth contact with female genetalia) and similar forms of sexual activities remains ambiguously answered. Subsequent to perusing the judgment of the Court, the answer seems to crystallise in the affirmative on three grounds.

1. Principle of Pragmatic Interpretation:

Section 377 as it stood before, prohibited carnal intercourse against the order of the nature with any man, woman or animal. Penetration was sufficient to constitute carnal intercourse under the section.[2] However, the term ‘against the order of nature’ was not defined. Over the years, the Courts have interpreted the term so widely, that it included every act except the ones which result in procreation.[3] Therefore, every act except vaginal intercourse has been previously interpreted as being against the order of nature. As a result, we have had judgments which have termed acts of coutis per os and cunnilinctus as against the order of nature.[4]

However, the present judgment takes a detour from this regressive approach. A common element in all the four opinions is the need for the constitutional courts to be pragmatic and adopt interpretations, relevant to the period it serves.[5] This is succinctly elucidated in the opinion of Chief Justice Misra, when he says,

 “That with the passage of time and evolution of the Society, procreation is not the only reason for which people choose to come together. It is the choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of the nature. Therefore, sex performed differently, as per the choice of the consenting adults, does not per se make it against the order of the nature.”[6]

Therefore, the pragmatic approach of the Court lends support to the belief that consensual sex of any form (except bestiality) between homosexuals and heterosexuals is legal and valid.

2. The Anomaly created by the 2013 Criminal Amendment:

The judgment discusses the timeline and effect of the Criminal Law (Amendment Act), 2013. The Act was hailed by many as a pro-woman legislation, which attempted to define the offence of rape with more specificity. The Act amended Section 375 to include acts of penetration and application of mouth into a vagina, mouth, urethra or anus of a woman as rape. However, the exception was free consent. Therefore, if the above act is committed with consent it is not rape but would still be labelled as unlawful due to the erstwhile interpretation of section 377.  This created an anomaly in the opinion of the judges, who have now in the instant manner rectified this by designating it as natural sexual.

This finds a place in the opinion of Misra J.,

“Drawing an analogy, if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be labeled and designated as unnatural offence under Section 377 IPC. If any proclivity amongst the heterosexual population towards consensual carnal intercourse has been allowed due to the Criminal Law (Amendment) Act, 2013, such kind of proclivity amongst any two persons including LGBT community cannot be treated as untenable so long as it is consensual and it is confined within their most private and intimate spaces.”[7] [Similar views have been expressed by Nariman J. at ¶ 94 and Chandrachud J. at ¶ 31]

3. The Principle of Autonomy:

A cardinal principle which the Court discusses is that of autonomy. The principle states that under a constitutional scheme, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy willfully to another individual and their intimacy in privacy is a matter of their choice.[8] Therefore, given that an individual can surrender his autonomy by free will in a private setup, they should also be allowed to engage in a sexual activity of their choice.

Although, certain critics might argue that the lack of an explicit mention by the Court leaves room for ambiguity, this in the author’s view happens to be a myopic view.

The Court in its final verdict states that section 377 in so far as it prohibits ‘any consensual sexual relationship’ is unconstitutional. What is to be noted is the usage of the umbrella term ‘any consensual sexual relationship’ which would logically include all possible sexual activities excluding such activities when performed on animals. There exist other instances in the judgment which lend support to the above argument, with Chandrachud J. referring to acts of sexual activities sans procreation as a manifestation of basic human urges.[9] However, they have not been reproduced for the sake of brevity.

Ultimately what we take away from this decision is that any form of consensual sexual relationship which two adults engage in their private space is completely legal and free from any interference. Today, as a civilized nation we can truly and completely live the virtues enshrined within the Preamble of the Constitution we gave ourselves 68 years ago.

The wisdom of this judgment shall live on, not limited to only changing the lives of the people it has touched but also to change the fate of the Indian society as we have known it to be. Today, we as a people truly stand liberated.

[1] Navtej Singh Johar v. Union of India, W.P. (Criminal) No. 76 of 2016. [hereinafter ‘Navtej’]

[2] Explanation, ¶ 377, Indian Penal Code, 1860 (India).

[3] Khanu v. Emperor, A.I.R. 1925 Sind 268; Khandu v. Emperor, AIR 1934 Lah. 261; Lohana Vasantlal Devchand & Ors. v. State, AIR 1968 Guj 252.

[4] Id.

[5] Navtej at ¶ 96 (Misra J. for himself and Khanwilkar J.).

[6] Navtej at ¶ 216 (Misra J. for himself and Khanwilkar J.).

[7] Navtej at ¶ 221 (Misra J. for himself and Khanwilkar J.).

[8] Navtej at ¶ 149 (Misra J. for himself and Khanwilkar J.).

[9] Navtej at ¶ 29 (Chandrachud J.).

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