A law of its time

When it was enacted, Section 377 was lenient compared to its predecessors

Written by Bibek Debroy | Updated: September 8, 2018 12:09:13 am

Till Thursday, homosexuality was a crime in India, but that’s a different matter, important though it is. (Illustration by C R Sasikumar)

Section 377 of the Indian Penal Code (IPC) was actually liberal for its time. Before someone throws a fit, do 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 10 years, and shall also be liable to fine.” The IPC was enacted in 1860 and though other parts of it have been amended, Section 377 — till the Supreme Court verdict on Thursday — remained virtually what it statutorily was in 1860, apart from judicial interpretation. The only minor change, in 1955/56, was the replacement of “transportation for life” with “imprisonment for life”.

The punishment was imprisonment, even it was for life. It wasn’t loss of life. Not surprisingly, Indian legislation then mirrored the English legislation of the time. England had the Offences against the Person Act of 1861 and Section 61 that criminalised sodomy and bestiality. Neither term was defined, at least not in the statute. The life imprisonment in these cases was not less than 10 years. Those English/British sections have been repealed and scrapped. Till Thursday, homosexuality was a crime in India, but that’s a different matter, important though it is.

But what was the punishment for sodomy before 1861? Believe it or not, preceding versions of the 1861 law stipulated the death penalty. That’s why I said legislation enacted in India and England in the 1860s and 1880s meant transition to penal laws that were relatively liberal. Oscar Wilde and much later, Alan Turing, were fortunate that they were prosecuted after 1861. To be strictly accurate, though, both Wilde and Turing were prosecuted for gross indecency, not sodomy. Sodomy was difficult to prove. Moreover, with the death penalty, convictions were infrequent.

So, 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 is well-known, Turing chose the non-imprisonment alternative. He opted for chemical castration, that is, oestrogen injections.

In the debate on Section 377 in India, the value judgement implicit in the law has been interpreted as a jaundiced view on morality and a violation of the right to choose. It was indeed often so in India and Britain of 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 the changes in the 1860s and 1880s, England had the Buggery Act of 1833. “An Acte for the punishment of the vice of Buggerie”, passed by England’s Parliament when Henry VIII was the king. This act was repealed for a brief period during Queen Mary’s reign. But the legislation was introduced again by Elizabeth I. Thomas Cromwell, obviously before he was beheaded, piloted Henry VIII’s legislation through Parliament. It’s 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 good chattels debts land 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 wasn’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 the law 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. He wanted to go after monks/nuns and the enormous quantities of land the 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 why 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.” This is from The Ballad of Reading Goal. Like the law criminalising homosexuality, we should repeal all pieces of legislation that are irrelevant.

The writer is chairman, Economic Advisory Council to the PM. Views are personal

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