As the Supreme Court revisits Section 377, one wonders about the validity of a law that owes its origin to the British Raj, but has in fact been repealed in the UK? A common argument against the validity of Section 377 is that the law is archaic, having no place in the 21st century. In the UK, the law was repealed in 1967.
In December 2017, the Lok Sabha passed the Repealing and Amending Bill and the Repealing and Amending (Second) Bill to repeal 245 obsolete and archaic laws, and identified approximately 1,800 more.
For instance, one of the laws that was struck down was the Dramatic Performance Act, 1876 which curbed theatrical representation in India, and was initially implemented by the Raj to police theatre that was likely to “excite feelings of disaffection to the government”.
Still, there remain many obsolete, little used laws in India. Here's a list of five contentious, archaic laws that continue to live on in Independent India but have met their timely demise in the UK.
Criminalisation of Homosexuality
The first, of course, is Section 377 of the Indian Penal Code, and has a long history in India as well as the UK. The law was partially read down in 2009 to exclude sex acts between consenting adults, but reversed in 2013 by the Supreme Court. The apex court has just concluded hearings on the constitutionality of Section 377, and we will need to wait and see if the judges decide to decriminalise consensual same-sex acts again.
In the UK, criminalisation of anal intercourse was written into law through the Buggery Act in 1533. Punishment for homosexual acts was death till 1861, and thereafter, life imprisonment till 1967. Then, the Sexual Offences Act 1967 was introduced to amend the law of England, thereby stipulating that private sex acts between consenting men over the age of 21 (in private) would no longer be a criminal offence. The age of consent was lowered in 1994, and a long way after, legislation by legislation, gay marriage became legal in England, Wales, and Scotland in 2014.
The law of sedition is criticised on the grounds of stifling freedom of expression, but in the country that introduced us to the law, it was abolished in 2009.
In the 1870s, the purpose of the law was to arrest and convict revolutionary nationalists who spoke against the legitimacy of the colonial government. Interestingly, the colonial government amended the law in India to make a case of sedition against VD Savarkar to ban his book and “seditious” pamphlet.
One of the most famous cases of sedition in recent times was the one against the then JNU Student Union president Kanhaiya Kumar in 2016, for allegedly raising “anti-India” slogans.
In the UK, the law regarding seditious libel was considered arcane in a society where freedom of thought and expression was a protected right under the Human Rights Act of 1998. It was considered to be a relic of an era where freedom of expression was not considered a right, and as a result sedition was no longer considered an offence.
Section 295A of the IPC, used as an anti-blasphemy law, punishes "deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs". Its origins lie in communal tensions between Hindus and Muslims in the 1920s, during which the Rangeela Rasul publication (allegedly) mocked Prophet Mohammed, creating public disorder and tension. Section 295A was viewed as the ‘need of the hour’ to protect different religions and maintain harmony.
There has, however, been a blurry line between intent and incitement, making the ambit of Section 295A too broad. For example, in 2016, comedian Kiku Sharda was arrested for allegedly hurting religious sentiments of followers of Dera Sacha Sauda leader Gurmeet Ram Rahim Singh.
Till as late as 2008, blasphemous libel or blasphemy in the UK was a potential charge if any published piece of writing vilified the Bible or Christianity, and threatened public order. It was even punishable by death. In the 1980s a movement had started to abolish the law, concurrent with efforts of Muslims in the UK who tried to invoke blasphemy laws against Salman Rushdie’s Satanic Verses.
In 1985, the UK Law Commission recommended that the law be abolished, stating the right to freedom of expression and the irrelevance of the law itself, as modern society is no longer based on religion. In 2008, the law was abolished with the UK Government arguing that little-used laws like blasphemy served no useful purpose and that they instead allowed religious groups to try to censor artists.
Under Section 141 of the IPC, an assembly of five or more persons becomes unlawful if the common intent of all members is to show criminal force, or to resist the execution of any law, or of any legal process. This vague provision of the law has on several occasions led to prohibition of even peaceful gatherings, issued under Section 144 of the Criminal Procedure Code.
Introduced in 1860, Section 144 was used by the colonial government to clamp down on protests by nationalist revolutionaries and to prevent riots. In independent India, Section 144 gives the local magistrate sweeping powers to end any agitation, peaceful or otherwise. Recent examples include the imposition of Section 144 during the anti-Sterlite protests in Tuticorin, and during the student protests at AMU that led to a lathi charge.
In the UK, unlawful assembly, rout, and riot in particular were abolished through the Public Order Act in 1986, in an attempt to make the law more comprehensive and clear to use. Yet in India, the vague definition of Section 141 has led to frequent usage of the prohibitionary order. For instance, at least 885 orders were issued in 2011 and 2012 in Delhi alone. Among these, only about 5 percent or so were concerned with the issue of unlawful assembly, according to the Economic Times.
A man is guilty of the offence of adultery in Section 497 of the IPC if he has sexual intercourse with the wife of another man, without his consent. Such sexual intercourse (if not amounting to the offence of rape) is punishable by up to five years in prison. Another remnant of the colonial era, adultery is a law rooted in traditional morality at the heart of which is the institution of marriage. It is currently only applicable to men.
In 1985, the Supreme Court unfortunately upheld Section 497, holding that a man seducing the wife of another was the most seen evil in society. However, the apex court will be hearing a fresh challenge against the provision soon.
Apart from being regressive and unfair to women since it ignores their agency and treats them as the property of their husbands, criminalisation of adultery also undermines the right to privacy.
In England, adultery has not been a criminal offence since 1857 (predating the IPC, in fact), though it can be used as a ground for divorce.
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