Our Honorable Supreme Court has been giving predictably shocking judgement recently, be it giving another bail to Laloo Yadav or the more notorious one in which it set aside a 2009 ruling by Delhi High Court which had rendered Article 377 null and void. The Apex court has ruled that changing the laws is the duty of the Legislature and even though it could have taken a suo-moto action, it decided to play safe.
There has been such a great outrage over IPC#377 that it need not be explained in detail. However for records sake, the section states:
Section 377 in the Indian Penal Code, 1861
Unnatural offences.– Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[ 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. Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. CHAPTER XVII OF OFFENCES AGAINST PROPERTY CHAPTER XVII OF OFFENCES AGAINST PROPERTY Of theft
What is most ironic is that, though this law was made in accordance of the puritanism of the Victorian era, it is now being hailed as the savior of the Indian Culture by its modern day flag-bearers. By the way, on Indian Culture, I came to notice some interesting stuff by Sri Sri Ravi Shankar on Twitter.
Sometimes it gets really confusing to decide what exactly our culture is, and what are we supposed to uphold and defend. Anyway, the topic of discussion here is not just IPC#377 but the whole Indian Penal Code itself. Parts of this book of law were written more than 150 years ago and some parts in fact sound so dated that they seem to have descended from the Code of Hammurabi. Consider IPC#497 for example [it deals with adultery as a punishable offence (!)]
Section 497 in The Indian Penal Code, 1860
Adultery.– Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.
There is more, IPC#498:
Section 498 in The Indian Penal Code, 1860
Enticing or taking away or detaining with criminal intent a married woman.– Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. CHAPTER XXA OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND 1[ CHAPTER XXA OF CRUELTY BY HUSBAND OR RELATIVES OF HUSBAND
While we do not spare any efforts in denouncing the Talibans of that side and the Khaps of this side, what do we do with our own laws and courts ? While adultery or extra-marital relationship being a punishable offence (and thus the courts poking their nose in the personal lives of people) is in itself surprising, what is purely amazing is the place these laws accord to a married woman.
As per IPC#377, a married woman is the property of her husband and it is the husband who can decide who has sex with his wife and on what terms. If he thinks its ok for her to sleep in someone else’s bed, so be it. Moreover, this woman is not a property like Draupadi was to Yudhisthir, she is considered like a material object, or at best cattle who cannot be held guilty if the crime has happened and hence cannot be punished. After looking into this, IPC#498 looks quite benign and stops at kowtowing its predecessor.
Do we even know what and how much needs to be changes, be it the laws or the mentality ?
With this question my Lords, I rest my case. Saying even an single word more will be an effort in futility.
Reference: Indian Kanoon