Section 377, and its mirror-law in England reduced the punishment for gay sex to life imprisonment, from death penalty

By: | Updated: September 8, 2018 3:22 AM

When we look at a piece of legislation, we often See it as it is interpreted today, not as it was when enacted. We also assume that the stated objective is the real one.

section 377, supreme courtIn the entire debate in India, the value judgement, even in the case of consenting adults, has been interpreted as a jaundiced view on morality and a violation of right to choice. (Representative image)

Section 377 of Indian Penal Code (IPC) was actually liberal, for its time. Before someone throws a fit, note the qualification “for its time”. By now, everyone knows what Section 377 states. Even then, let me quote what it has to say on 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.” IPC was enacted in 1860 and though other parts of IPC have been amended, Section 377 is still virtually what it statutorily was in 1860, apart from judicial interpretation. The only minor change, in 1955/56, has been that bit within square brackets, where “transportation for life” has been replaced with “imprisonment for life”. The punishment was imprisonment, even it was for life. It wasn’t loss of life.

Not surprisingly, Indian legislation of the time mirrored English legislation of the time, and England had its Offences against the Person Act of 1861 at the same time. This English legislation had a Section 61 (and 62 for attempts) on sodomy and bestiality. Neither term was defined, at least not in the statute. This made the punishment life imprisonment or imprisonment for a term not less than 10 years. Those English/British sections have been repealed and scrapped, while the Indian one hasn’t, but that’s a different matter, important though it is. In other parts of IPC, and other pieces of legislation, other countries have moved on, while India clings to history.

What was the punishment before 1861? Believe it or not, across preceding versions of the legislation in both 1828 and 1837, it was the death penalty. That’s the reason I said 1860/61 in both India and England meant transition to legislation that was relatively more liberal.

Oscar Wilde, and Alan Turing much later, were fortunate the incidents for which they were penalised hadn’t occurred before 1861. To be strictly accurate, both Wilde and Turing were prosecuted for gross indecency, not sodomy. Sodomy, with a very specific definition (requiring penetration), was difficult to prove. Plus, if there was going to be a death penalty, with such stringent provisions, successful conviction was going to be infrequent. Therefore, in 1885, Britain introduced a Criminal Law Amendment Act with a slightly weaker crime of “gross indecency and a reduced punishment of imprisonment “not exceeding two years”, not 10 years or life. That’s what Oscar Wilde got, hard labour between 1895 and 1897. As everyone probably knows, choosing the non-imprisonment alternative, Alan Turing opted for chemical castration, that is, oestrogen injections.

In the entire debate in India, the value judgement, even in the case of consenting adults, has been interpreted as a jaundiced view on morality and a violation of right to choice. Indeed, it is often that in India and it was often that in Britain in the second half of the 19th century, the so-called Victorian era. When we look at a piece of legislation, we often look at the statute, as it is interpreted and viewed today, not as it was when first enacted. We also look at a piece of legislation and assume the objective stated is the real one. Before all these changes, England had the Buggery Act of 1533, “An Acte for the punishment of the vice of Buggerie”, passed by England’s Parliament when Henry VIII was the king. (There was a brief repeal during Queen Mary, but that didn’t last long and the legislation was introduced again by Elizabeth I.) Thomas Cromwell, naturally before he was beheaded, was the one who piloted Henry VIII’s legislation through Parliament. It is good to have a quote, even though the English is archaic. “The offenders being hereof convicted by verdict confession or outlawry shall suffer such pains of death and losses and penalties of their goods, chattels, debts, lands, tenements and hereditaments as felons do according to the Common Laws of this Realm. And that no person offending in any such offence shall be admitted to his Clergy.” Buggery/sodomy weren’t defined. But no matter. Was this about morality? Nothing of the kind. Read that archaic English carefully. Once convicted, the accused lost his/her life. But he/she lost all possessions, too, especially land. The heirs didn’t get it, the Crown did. Monks and nuns could also be prosecuted for this particular crime, though they couldn’t be prosecuted for murder. Why did Queen Mary briefly repeal it between 1553 and 1563? Because she wanted ecclesiastical courts to try such crimes.

Why did Henry VIII introduce the law? Because he didn’t want ecclesiastical courts to try such crimes. After all, he wanted to go after monks/nuns and the enormous quantities of land monasteries possessed. The objective, implicit if not explicit, was economic, not moral. It was no different for what was done against the Knight Templars in Europe. That’s the reason I said the apparent objective of a piece of legislation can be quite different from the real one.

But this I know, that every Law/That men have made for Man, Since first Man took his brother’s life,/And the sad world began, But straws the wheat and saves the chaff/With a most evil fan.
These lines are from The Ballad of Reading Gaol, by Oscar Wilde. Beyond interpretation by courts, welcome though that is, one should move on to statutorily repealing bits of legislation now irrelevant.

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