Shashi Tharoor to introduce bill to amend Section 377

Mumbai: Lok Sabha MP Shashi Tharoor is introducing a private member’s bill which seeks to amend Section 377 of the Indian Penal Code (IPC) that criminalizes homosexuality.

The colonial era law criminalizes all non-penile vaginal sexual intercourse.

The Indian Penal Code (Amendment) Bill 2015 has been listed to be introduced in Parliament on 18 December.

In effect, the bill aims to decriminalize sexual intercourse in private between consenting adults, irrespective of their sexuality or gender, by restricting the applicability of the section.

The proposed amendment introduces five substitutions in the current law that establish the importance of consent during sexual intercourse, with the age of consent being above 18 years.

It also drops the phrase “against the order of nature” from the text of the current provision.

The amended bill reads:

“Whoever has sexual intercourse with any person under the following circumstances, is said to commit a sexual offence:

(First) Against his will.

(Secondly) Without the person’s consent.

(Thirdly) With the person’s consent, when his consent has been obtained by putting him or any person in whom he is interested, in fear of death or hurt.

(Fourthly) With the person’s consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, he is unable to understand the nature or consequences of that to which he gives consent.

(Fifthly) With or without the person’s consent when he is under eighteen years of age.”

The bill introduces Section 377A to lay down the quantum of punishment of rigorous imprisonment of a minimum of seven years, and maximum of life imprisonment for rape and intercourse with a minor. This follows the punishment prescribed under Section 375 of the IPC and Section 4 of the Protection of Children from Sexual Offences Act (2012).

Section 377 criminalizes homosexuality, and has been used as an effective tool to harass, threaten and extort money from the lesbian, gay, bisexual and transgender (LGBT) population in India. From January to November 2014, over 800 cases of violence against transgender persons, hijras, and men who have sex with men were recorded in 17 states, according to data collected by the India HIV/AIDS Alliance, from 200 community-based organizations through its national capacity building programme Pehchan.

According to estimates, 10% of the population is non-heterosexual. This includes lesbian, gay, bisexual, and transgender communities. This implies that several million people stand to be affected by this bill.

In 2009, the Delhi high court had delivered a verdict that read down Section 377. The verdict was hailed as a human rights victory as it deemed Section 377 to be against the right of privacy, personal liberty and health.

However, in December 2013, the high court verdict was overturned by the apex court, which found the law to be constitutionally valid. The Supreme Court verdict recommended that Parliament either delete or amend the section.

On 28 November, finance minister Arun Jaitley, speaking at a literary festival in Mumbai, stated that the Supreme Court judgement on Section 377 was not correct and added that “at some stage, they may have to reconsider”.