Anti-homosexual laws have a harsh past

The criminalisation of homosexuality started way back in the 1290s when the common law in England prescribed death for sodomites by setting them ablaze alive.

Acts of sodomy carried the sentence of hanging under the Buggery Act of 1533, which was re-enacted in 1563 by Queen Elizabeth I. Later, it became the charter for the subsequent criminalisation of sodomy in the British colonies.

Oral and genital sexual acts were removed from the definition of buggery in 1817. And, in 1861, the death penalty for buggery was formally abolished in England and Wales.

English law, which India continued to follow, was reformed by the United Kingdom under the Sexual Offences Act, 1967, which decriminalised homosexuality and acts of sodomy between consenting adults (above the age of 21).

In 1967 in England and Wales and in 1980 in Scotland, sodomy between consenting adult males in private was decriminalised. But in Northern Ireland the criminal law relating to sodomy remained unchanged.

In 1982, in pursuance of the decision of the European Court of Human Rights in Dudgeon v The United Kingdom, sodomy between adult consenting males in private was decriminalised in Northern Ireland as well.

Laws prohibiting homosexual activity between consenting adults in private have been removed from the statute books of the 23 member-states that joined the Council of Europe in 1989. Of the 10 East European countries, nine repealed anti-sodomy laws either before or shortly after their membership applications were granted.

The Indian Penal Code was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 of the IPC was titled 'Of Offences Affecting the Human Body'.

This provision explains that "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".

The section adds: "Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

The term 'carnal intercourse' is used in section 377 to distinguish it from the term 'sexual intercourse'.

The first known judgment from an Indian court under this section came in 1925 (Khanu v The Emperor). The judgment held that "section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings... [If the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus is impossible."

It appears that courts had earlier in 1817 (RV Jacobs) and 1886 (Govindarajulu case) held that inserting the penis in the mouth would not amount to an offence. Later, however, section 377 was interpreted to cover oral sex, anal sex, and penetration of other orifices.

In the Lohana Vasantlal Devchand case, the Supreme Court in 1968 held that the issue was whether oral sex amounted to an offence under section 377 of the IPC.

It was held that the "orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse".

In Calvin Francis v Orissa (1992), the court relied on the Lohana verdict and held that oral sex fell within the ambit of section 377 of the IPC.

The court held that sexual perversity and abnormal sexual satisfaction were the guiding criteria in resolving the dispute.

In Fazal Rab Choudhary (1983), the apex court observed that section 377 of the IPC implied "sexual perversity".

Evidently, the test for attracting the penal provision had changed from being a non-procreative act to an act of sexual perversity.