Report No. 42

16.121. Compelling or seducing a boy to illicit intercourse.-

It was suggested that a mature woman, who compels or seduces a boy under sixteen years of age to sexual intercourse, should be just as severely punishable as a man in the converse case. Apart from the physiological fact that forcing a boy, in the strict sense, to perform the act is impossible, complaints of either forcing or seducing minor boys to such illicit intercourse are unheard of. Such lascivious acts on the part of the woman are socially not so evil as to merit a penal provision.

16.122. Knowingly infecting another with venereal disease.-

We considered the need for a new section punishing a person who knowingly exposes another to infection of venereal disease by sexual intercourse. We are of the view that such an act need not be made an offence. It may be that if the act causes the disease, then it might amount to causing hurt which, as defined in section 319, perhaps includes disease; this is, however, doubtful, the notion of hurt and the notion of disease being basically different from each other. If at all such an act is to be made an offence, then it has to be by means of a specific provision, but it is fairly obvious that any such provision is unlikely to be enforced in practice. It is, therefore, not recommended.

16.123. Compelling a woman to illicit intercourse in certain special situations.-

There are certain situations in which, although force or fraud cannot be established, the compulsion of the situation is such that the woman's will is dominated by the will of the man, and taking an undue advantage of the situation, the man takes liberties with the woman. The woman's submission to sexual intercourse in such a situation is really not a willing consent, and we think that provisions punishing this reprehensible conduct on the part of the man should be included in the Penal Code.

We do not, however, wish to make the provisions very wide because they may furnish a weapon for blackmail in the hands of unscrupulous women or their relations. We would confine it to those situations where the need for throwing a cloak around the woman for protecting her chastity outweighs the opportunity for blackmail. On this principle, we recommend the insertion of three new sections as follows.-

"376C. Illicit intercourse of public servant with woman in his custody.- Whoever, being a public servant, compels or seduces to illicit intercourse any woman who is in his custody as such public servant shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

376D. Illicit intercourse of superintendent etc. with inmate of women's or children's institution.- Whoever, being the superintendent or manager of a woman's or children's institution or holding any other office in such institution by virtue of which he can exercise any authority or control over its inmates, compels or seduces to illicit sexual intercourse any female inmate of the institution shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Explanation.- In this section, "women's or children's institution" means an institution, whether called an orphanage, home for neglected women or children, widow's home or by any other name, which is established and maintained for the reception and care of women or children,1 but does not includ.-

(a) any hostel or boarding house attached to, or controlled or recognised by, an educational institution,2 or

(b) any reformatory, certified or other school, or any home or workhouse, governed by any enactment for the time being in force.3

376E. Illicit intercourse of manager etc. of a hospital with mentally disordered patient.- Whoever, being concerned with the management of a hospital or being on the staff of a hospital, has illicit sexual intercourse with a woman who is receiving treatment for a mental disorder in that hospital, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Explanation.- It shall be a defence to a charge under this section for the accused to prove that he did not know, and had no reason to believe, that the woman was a mentally disordered patient."

1. Cf. section 2, Women's and Children's Institutions (Licensing) Act, 1956.

2. Cf section 10, Women's and Children's Institutions (Licensing) Act, 1956.

3. Cf section 21, Suppression of Immoral Traffic in Women and Girls Act, 1956.

16.124. Section 37.-questions put.-

Section 377, which is the last section in this Chapter, deals with unnatural offences, including buggery and bestiality, and provides for these a punishment as severe as that provided for rape in section 376. In order to elicit informed public opinion on the subject, we had included in our Questionnaire the following two questions.-

(a) Should unnatural offences be punishable at all, or with heavy sentences as provided in section 377?

(b) Should exception be made for cases where the offence consists of acts done in private between consenting adults?

The replies received by us are conflicting, but a larger number of those who have cared to express an opinion are in favour of retaining the section more or less as it stands. Some were of the view that homo-sexual acts done in private between consenting adults need not be treated as offences, but other thought that such acts are "abominable and loathsome which tend to-make men and women depraved" and should be punishable in all circumstances. There was, however, a general feeling that the punishment provided in section 377 is unduly harsh and quite unrealistic. No court is likely to sentence a man to imprisonment for life for committing such acts.

16.125. Arguments against punishing homo-sexual acts.-

The question has in recent times received much attention in the West. The Wolfenden Committee in England set out the main arguments against punishing homo-sexual acts, viz., that the act harms no body, that it falls within a sphere of private immorality which is not the law's business and that it could be tackled by other measures. Referring to the punishment of imprisonment usually awarded for the offence, one American psychiatrist has pertinently observed that "segregating a male homo-sexual for months or years in a prison, where he will see only other men and where he will often be isolated with a group of other homo-sexual, can hardly result in anything but reinforcement of the homo-sexual tendencies."1

1. Prof. Karl M. BOwman Review of Sex Legislation and Control of Sec Offenders in the cited in Donnelly Criminal Law (1962), p. 163.

16.126. Arguments for retaining present law.-

There are, however, a few sound reasons for retaining the existing law in India. First, it cannot be disputed that homo sexual acts and tendencies on the part of one spouse may affect the married life and happiness of the other spouse, and from this point of view, making the acts punishable by law has a social justification. Secondly, even assuming that acts done in private with consent do not in themselves constitute a serious evil, there is a risk involved in repealing legislation which has been in force for a long time.

The position might be different if we were merely refraining from legislating about a type of private conduct whose suitability for punishment is in dispute, but we are not legislating on a blank slate. Ultimately, the answer to the question whether homo-sexual acts ought to be punished depends on the view one takes of the relationship of criminal law to morals. The debate on the subject, sparked off by the Report of the Wolfenden Committee, has not yet come to an end.

There will always be two views on the question how far it is the business of criminal law to enforce notions of private morality. If one shares the reasoning of the Committee, namely, that there is a sphere of private morality in which criminal law has no business, then the answer is clear, but it is well known that there are distinguished thinkers who take a different view, emphasising the need for preserving the society's cherished beliefs.

It appears to us that, in this highly controversial field, the only safe guide is what would be acceptable to the community. We are inclined to think that Indian society, by and large, disapproves of homo-sexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private.

16.127. Amendments recommended.-

We think, however, that cases of bestiality should be regarded as pathological manifestations ignored by the criminal law. Buggery may continue to be an offence, punishable much less severely than at present, but where it is committed by an adult on a minor boy or girl, the punishment should be higher.

We propose that section 377 may be revised as follows.-

"377. Buggery.- Whoever voluntarily has carnal intercourse against the order of nature with any man or woman shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; and where such offence is committed by a person over eighteen years of age with a person under that age, the imprisonment may extend to seven years."

"Explanation.- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."