shashi tharoor
Congress Member of Parliament Shashi Tharoor.IANS

Congress leader and Lok Sabha MP Shashi Tharoor will on Friday introduce a private member's bill seeking amendments to Section 377 of the Indian Penal Code, 1860, that criminalises homosexuality.

A private member's bill is a proposed law introduced by a Member of Parliament independently and not collectively by his/her party.

In the Indian Penal Code (Amendment) Bill, 2015, Tharoor has proposed substitutions in the provisions of Section 377. He has listed the elements of "consent" and proposed to replace "Unnatural offence" with "Other Sexual Offences" and omit the words "against the order of the nature" from the current provision.

"The Bill proposes to restrict applicability of section 377 of the 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 the Indian Penal Code," the proposed law said.

The five substitutions in the amendment to Section 377, proposed by Tharoor, are:

"Whoever has sexual intercourse with any person under the following circumstances, is said to commit a sexual offence: 

(First) – Against his will.

(Secondly) – Without the person's consent.

(Thirdly) – With the person's consent, when his consent has been obtained by putting him or any person in whom 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 or consequences of that to which he gives consent.

(Fifthly) – With or without the person's consent when he is under eighteen years of age."

He has introduced a new section, 377A, to decide the punishment for those who commit sexual crimes under section 377. He has proposed seven years of jail or life imprisonment, along with a fine, for the offender.

Tharoor noted in the bill that the IPC was "drafted by Thomas Babington Macaulay and enacted under the Viceroy Canning in pre-independent India. In 1967, the United Kingdom itself decriminalised homosexual acts between consenting adults by enacting Sexual Offences Act".

He added that the criminalisation of gay sex deprives homosexuals of their fundamental rights and dignity.

"The fundamental rights of dignity, autonomy and privacy are above moral outrage and therefore, public morality is not a valid ground to restrict consensual acts between adults in private. Such acts pose no serious harm to anyone else or the society as a whole but its criminalisation discriminates against homosexuals on the basis of their sexual orientation and also impairs their dignity," he added.

Section 377 of the IPC has been a matter of debate in India ever since the Supreme Court ruled against the Delhi High Court's 2009 order legalising gay sex.

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