Does Sec 377 Judgment Affect Marital Sodomy and Pending Cases?

Section 377 will be applicable if a sexual act is non-consensual.

Image: Arnica Kala

In a historic decision, the Supreme Court on Thursday, 6 September, read down Section 377 of the IPC to exclude any sex acts between consenting adults, including consensual same-sex acts. The move is particularly important for the LGBTQ+ community, who have been targeted and discriminated against because of this provision, as noted by the judges.

However, the five-judge bench did not entirely scrap Section 377. Non-consensual same-sex acts and bestiality continue to be criminal offences, as clarified by the Supreme Court decision (comprised of four concurring judgments).

At this point, it may be useful to recall what exactly Section 377 of the IPC says:

“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 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.”

In his judgment on behalf of himself and Justice AM Khanwilkar, CJI Dipak Misra said,

“If anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without the consent of any one of them would invite penal liability under Section 377 IPC.”

Which means that Section 377 can still be invoked against an individual (man or woman) if he/she indulges in non-consensual “carnal intercourse against the order of nature.”

“Section 377 can now be invoked against only those individuals who indulge in non-consensual sexual acts, irrespective of whether the individual is homosexual or heterosexual.”

Anand Grover, Senior Advocate (who had argued for the petitioners)

In all other respects, however, Section 377 will continue to apply as it did before.

Can Sec 377 Be Used By a Wife Against Her Husband?

The judgment does not change the position of law on this issue.

Even before this judgment, Section 377 could be invoked by a wife against her husband for indulging in non-consensual or forced anal or oral sex with her – see for instance the decision of the Gujarat High Court in Nimeshbhai Bharatbhai Desai vs State of Gujarat. Section 375 (the general provision for rape) has an exception for marital rape, while Section 377 makes no such exception.

It is not yet clear if forced oral sex performed by a married man on his wife would constitute an offence under Section 377, or fall within the purview of Section 375 (and therefore be protected by the marital rape exception) – though the Supreme Court will be hearing an appeal on the issue.

This and other similar issues may also be addressed by the Delhi High Court which is hearing a plea on the marital rape exception.

What Will Happen To Pending Cases Under Section 377

Justice Indu Malhotra addressed one of the elephants in the room - the cases instituted under Section 377 before today’s judgment of the Supreme Court.

“The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.”

Justice Indu Malhotra

As a result, the judgment can be used to quash pending cases (at any stage) which relate to consensual same-sex acts. It would not apply to cases where there was no consent - and cannot also be used where the legal process has been concluded (ie, where a convicted person has served their sentence or has no avenue of appeal/revision).