Why Reading Down, Not Striking Out Sec 377 Was the Right Option

Section 377 can still be a redressal for adult male victims of sexual violence and also some cases of marital rape.

Section 377 was not struck down, but read down by the Supreme Court on 6 September 2018. 

(Photo: Altered by The Quint)

Section 377 of the IPC has been roundly criticised over the last three decades and rightly so. But not everything about this 157-year-old British era provision is draconian and some of its aspects are, in fact, quite necessary, which is why the five-judge Supreme Court bench only read down, not struck off Section 377.

The problem with Section 377 was that it considered all non-penile-vaginal sex as “carnal intercourse against the order of nature” without so much as considering the concept of ‘consent’.

It is this blatant disregard for consent when it comes to same-sex acts, which has been fixed in the Supreme Court’s landmark judgment.

“Ergo, Section 377 IPC, so far as it penalises any consensual sexual relationship between two adults... cannot be regarded as constitutional,” said the apex court. However, bestiality (sexual activity with an animal) or same-sex acts between two individuals without consent of any one of them, “would invite penal liability under Section 377 IPC”.

Here are the key reasons why retaining the modified version of Section 377 was necessary:

1. Remedy for Male Victims of Sexual Violence

By separating consensual acts of sex from rape, the Supreme Court has ensured that Section 377 can continue to be used for redressal by adult males who have been subjected to sexual violence.

This is because India’s rape laws are not gender-neutral. Section 375 defines rape as a crime perpetrated by a man against a woman (who is not his wife).

Having gender-neutral rape laws (without a marital rape exception) would be the ideal situation, but till that happens, Section 377 is necessary to aid rape victims – who are men – seek justice.

2. Remedy for Certain Cases of Marital Rape

The Delhi High Court is yet to deliver its verdict on the legality of marital rape exception in Section 375 of the Indian Penal Code. As of today, an Indian woman cannot file a rape complaint under Section 375 against her husband.

Section 377, however, makes no marital exception, allowing a woman subjected to forced anal or oral sex by her husband to file a complaint against him under this provision, as recently affirmed by the Gujarat High Court.

3. Bestiality and Necrophilia

The judges have also clarified that bestiality (sex with animals) continues to be a criminal offence under the read-down Section 377, given that consent is the cornerstone of the judgment.

The partial reading down also presumably ensures that necrophilia (sex with a dead body) continues to be an offence under the law.