Lawyers and cops discuss grey areas following the decriminalisation of gay sex, including how consent is obtained, which is covered by Section 376
Representation Pic/AFP
While the battle for consent has been won in the courtrooms, the larger war in the bedroom remains unconquered. On September 6, the Supreme Court decriminalised consensual gay sex, bringing joy and loads of relief to a huge section of Indian society. However, it is the keepers of the law that are anxious over the anticipated astronomical rise in statistics of 'betrayed' partners in what they call 'technical' rapes.
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Speaking to mid-day, Advocate Rajeshwar Panchal said, "Since section 377 has not been quashed in its entirety, the same will continue to be operative. However, consenting parties would not be subjected to prosecution under this section. However, just like there are cases where section 376 (rape) has been misused, the possibility of misusing section 377 cannot be ruled out as the consenting party may make an allegation that he/she never gave consent or it was obtained by fraud or force or misrepresentation etc,. In the coming times, we would certainly have the occasions to face such circumstances." Panchal cited numerous court orders setting aside misuse of section 376 by registering after thought rape cases (see box).
The Supreme Court struck down a colonial-era ban on gay sex on September 6, paving the way for same-sex couples to live without the fear of prosecution. Pic/AFP
Gender neutral laws
Advocate Floyd Gracias, who practices constitutional law said, "If the victim (same sex) reports a case of non consensual act the police ought to register a case under sec 377 as it does not amount to consensual sex. The same is the case with section 375. The fundamental issue and the need of the hour is now to amend all laws who's ambit has been broadened by the judgment. Rape and the laws relating to sexual harassment including sexual harassment at the workplace need to be gender neutral. With this there will be a need to further strengthen the laws for the protection of women and minors."
He clarified stating, "While the LGBTQ community is now protected in terms of equality before law, they will need to further secure their right to equal protection of law. Same gender rapes, sexual harassment in every permutation and combination ought to be secured and protected against. Any form of sexual harassment ought not to exist."
Concept of consent
Further to answer your question regards subsequent withdrawal of consent. "Globally the concept of consent is vague. Unlike in civil law there is no way to establish consent. Hence there will always be the possibility of misuse. Consent obtained by coercion fraud and misrepresentation should not be considered free consent and such cases should be construed as rape."
Free consent
"However if there was free consent by consenting partners and subsequently the relationship sours it's then a matter of right to choice. You may choose to be with someone and there was free consent at that time. However, if someone chooses otherwise later the circumstance would need to be examined in determining such cases," he said.
Another senior counsel Godfrey Peminta added, "For instance the marriage between same sex is not permitted in accordance with the present laws. However, in western countries such marriages are permitted. As such keeping in view the progressive decision of the Supreme Court consequential amendments would be required to be carried out in host of the statues like property matters, marriages, adoption of children, etc," Peminta said.
Cops need to be sensitised
State Home Minister (rural) Deepak Kesarkar, said, "When the SC passes an order it becomes a law, but we will have to check with the state law and judiciary department if any special training needs to be given to police for understanding the thin line of consensual and non consensual (sex) before registering the FIR."
Srirang Nadgauda, former ACP, said, "The police will need to look at complaints from same-gender relations more sensitively hereafter. Earlier they could register the offence under sec 377, as any unnatural act was against the law, but with SC decriminalising the consensual relationship in private, the police will have to probe such complaints in depth. Also if it turns out to be a consensual act, then the complaint will mellow down to mere cheating and causing hurt etc which will be a bailable offence" Harish Iyer, Equal Rights Activist, said, "The Supreme Court in its order has clearly stated that government should sensitise everyone about 377, as the entire section is not repealed. Having said that it is also a fact that the probability of misusing any act cannot be ruled out and the need of the hour is to ensure that the police officials are prudent before registering offences under any act and against anyone."
High court examines technical rape
In a case dated 2011, a survivor had registered a case under sec 376 (rape) against herpartner of three years. The accused approached the Sessions court with a discharge application but it was rejected. He then challenged the order in the High Court.
Justice A M Thipsay, of Bombay High Court, observed that the accused could not be prosecuted under section 376 as "the victim was a consenting party to the sexual relations between the accused and her." Justice Thipsay also stated, "The reasoning of the Learned Assistant Sessions Judge in that regard, is improper and incorrect."
Also Read: Section 377 debate: Conversion therapy must be made illegal, says psychologist
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