Going by media reports on the Raghavji case in the last week, one would think that Raghavji’s only crime was that he was a practitioner of the love that dares not speak its name. Although, the media was happy to speak its name, many times over. In the last week, we’ve had the pleasure of reading and hearing news report after news report stating with alacrity that the Madhya Pradesh Finance Minister had been expelled from the Bharatiya Janata Party and arrested for indulging in, hold your breath, – SODOMY!!!
So was he arrested for sodomy or for non-consensual sex? It seems the media had missed the non-consensual sex for the sensationalism of a sodomy headline.
Since when did sodomy become a crime? You’d think it is going by the headlines on news channels and newspapers.
Everyone seemed to insinuate that sodomy was a punishable crime. It began with Rajdeep’s tweet:
And was followed by:
So did the law change while we and Raghavji were sleeping? No. First the facts.
As per media reports, Raghavji’s domestic help Rajkumar Dangi filed a complaint of sexual exploitation against him on July 4, 2013. Following the complaint, Raghavji resigned as State Finance Minister on July 5, 2013. Consequently, on July 7, 2013, police filed an FIR against him and he was also expelled from the BJP. He applied for anticipatory bail on July 8, 2013. In the meantime, the police arrested him on July 9, 2013.
The news channels were also kind enough to inform us that Dangi had alleged that on numerous occasions Raghavji had asked him to massage his private parts. It is these details that we live to hear.
Only Firstpost’s Sandip Roy correctly pointed out the importance of understanding sodomy in the context of the Indian law and how the media missed the central point.
Here’s what the law says. First off, sodomy as such has not been defined anywhere in Indian law. The closest we got to sodomy was in the Indian Penal Code (IPC) 1860 under – Section 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 172nd Law Commission Report in March 2000 recommended the repeal of Section 377. The Delhi High Court in its famous judgment of Naz Foundation vs Government Of Nct Of Delhi on 2 July, 2009 struck down consensual sex between homosexuals as an offence. Thus the provision is only applicable in instances of coercive sex i.e. sex without consent. Since it is a High Court Judgment it is only of persuasive value. The matter is still pending before the Supreme Court.
The word “sodomy” has been mentioned only under Section 10 of the Indian Divorce Act 1869, as a ground for a wife to approach the court for dissolution of marriage. EIGHTEEN SIXTY NINE!? Didst thou hearest that, thou reader? Aren’t thou blesseth to haveth a laweth from theneth? What the fucketh?! Then again, who knows, maybe Raghavji and his help are married in the eyes of the media.
In the Supreme Court judgment of Anil Kumar Mahsi v. Union of India 1994 SCC (5) 704, a Bench comprising of Justices PB Sawant and Yogeshwar Dayal defined Sodomy using the following sources-
Black’s Law Dictionary as – A carnal copulation by human beings with each other against nature, or with a beast.
Oxford English Dictionary – An unnatural form of sexual intercourse, especially that of one male with another.
In the Gujarat High Court judgment of Lohana Vasantlal Devchand v.The State AIR 1968 Guj 252, Justice Sheth stated the following- “In my opinion, sodomy will be a species and unnatural offence will be a generis. In our Indian Penal Code, an unnatural offence is made punishable under Section 377 of the Indian Penal Code. Unless we restrict the meaning of unnatural offence, for which there is no justification, the act in question will be an act, punishable under Section 377 of the Indian Penal Code.”
In the Supreme Court judgment of Sakshi v. Union of India AIR 2004 SC 3566, a Bench of Justices SR Babu and G Mathur quoted Justice GP Singh’s renowned book Principles of Statutory Interpretation– “Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear.
According to the above judgments, “sodomy” widely covers sexual crimes against the order of nature such as anal, oral, bestial intercourse that can be consensual and non-consensual. Therefore, having alternate sexual preferences is a crime against the State.
After the Naz Foundation judgment, Section 377 Unnatural Offences of IPC 1860 as of now has been successfully applied mostly in cases of coercive sex where there is a lack of consent. When the victim of sexual abuse is a man, this is the only applicable provision under which a case been filed according to the Indian law. The provision, though, has not been completely struck down.
So if a complaint of sexual abuse has been filed against Raghavji, the police must have lodged an FIR against him under Section 377 of IPC 1860. So who replaced the phrase “unnatural offences” with “sodomy” by the time it hit headlines? It could have to do with the fact that most of our editors in news channels and publications are little baba logs, brought up on the Queen’s English and in Oxford. The word “sodomy” after all is a British import. While the Raj overturned the Buggery Act in 1967, the terminology has stayed on in India. Synonyms in criminal offences are a dangerous territory, which ideally the media should not indulge in.
The media, by focusing on the sexual act, has made it seem that Raghavji was guilty of breaking the law for indulging in a spot of pederasty with a man – with no mention of the fact that it was non-consensual. Then again, maybe the media was just displaying how well-informed it was on the case. After all, viewership is in the sexual details. Sodomy, buggery, massages – they gave us all details in their headlines. Maybe, like Dante, our media considers sodomy worse than homicide or suicide. And has damned Raghavji and balanced reportage to the bottom-most ring of the headline circle.
(Legal Disclaimer- Usage of the phrase “what the fucketh” has been inserted by Abhinandan Sekhri. The author can only agree-eth.)
15. Vishnu S. Warrier