The Private Member’s Bill of Shashi Tharoor, a Congress MP, to amend Section 377 will be tabled in the Lok Sabha on Dec 18. Mr. Tharoor has posted the text of the Bill on his website. The Bill seeks to de-criminalise consensual sexual acts among adults, and also replaces the term “unnatural offences” with the term “Other Sexual Offences”.

Section 377 of the Indian Penal Code was enacted in 1860, and criminalises ‘carnal intercourse against the order of nature’. Sec 377 reads as:

“377. 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.”

The amendment proposed by Shashi Tharoor instead proposes to “restrict the applicability of Section 377 of Indian Penal Code to non-consensual sexual acts between persons or sexual acts with persons under the age of eighteen years as long as such acts are not punishable under sections 375, 376, 376A, 376B, 376C, 376D or 376E” of IPC. The Bill also lists the elements of consent and prescribes punishment for sexual offences.

Mr. Tharoor is also introducing another bill to amend Sec 124A and limit applicability of sedition charges, The two bills, he said, “are an attempt to introduce liberal 21st century values into our legal code &liberate our laws from the colonial era”.

The amendments proposed to Sec 377 are as under:

“377. Whoever has sexual intercourse with a person, under the following circumstances, is said to commit a sexual offence :-

(First) – Against his will

(Second) – Without the person’s consent

(Thirdly) – With the person’s consent, when the consent has been obtained by putting him, or any person he is interested, in fear of death or hurt

(Fourthly) – With the person’s consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, he is unable to understand the nature and consequences of that which he gives consent

(Fiftly) – With or without the person’s consent, when he is under eighteen years of age.

Explanation 1 – For the purposes of this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375

Explanation 2 – Consent means an unequivocal voluntary agreement when th eperson by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a person who does not physically resist to the act of penetration shall not by reason only of that fact, be regarded as consenting to the sexual activity

Exception– Sexual intercourse other than penile-vaginal intercourse between consenting parties shall not be an offence provided both the parties have attained eighteen years of age.

377A, (1)Whoever commits a sexual offence specified under Section 377 shall be punished with rigorous imprisonment for a term, which shall not be less than seven years and which may extend to imprisonment for life, and shall be liable to fine.

(2) Notwithstanding anything contained in any law for the time being in force, where an act constitutes an offence punishable under sub-section (1) and also under sections 375, 376, 376A, 376B, 376C, 376D or 376E, then the offender found guilty of such offence shall not be liable to be punished under sub-section(1)”

Sukhdeep Singh