Reporter’s Diary: Lord Macaulay and the Section 377 judgment

Reporter’s Diary is a series that brings you interesting snippets from court hearings across the country. It attempts to offer our readers a glimpse into interactions between judges and lawyers, and the observations made in cases of national importance.

The name of the author of the Indian Penal Code, Lord Thomas Babington Macaulay, appears 25 times in Navtej Johar v. Union of India, the judgment decriminalising consensual sex between adults that was hitherto an offence under Section 377.

Lord Macaulay’s name appears 10 times in Justice Rohinton Fali Nariman’s judgment, and 15 times in Justice DY Chandrachud’s judgment. Given the fact that Section 377 is the legacy of Lord Macaulay, it is but natural that two of the four landmark judgments delivered in the case examined his role in the evolution of this provision.

Justice Nariman reveals that Lord Macaulay recognized a lesser sentence for the crime of “unnatural lust”, if performed with consent. Thus, according to the original draft, he would punish touching another person for the purpose of gratifying “unnatural lust” without their “free and intelligent consent” with a term of imprisonment extendable to life (but not less than seven years), while the penalty for the same offence, when consensual, would be imprisonment for a maximum term of 14 years (but not less than two years).

Nariman J says it is not clear how Lord Macaulay’s draft changed content, so as to blur the distinction between consensual and non-consensual, and from punishing the mere act of touching to “carnal intercourse against the order of nature”.

Both Justices Nariman and Chandrachud refer to how Lord Macaulay eschewed public discussion on this subject on the ground that it was abhorrent to the moral notions which he espoused. Nariman J, in a footnote, narrates an interesting anecdote about Macaulay’s childhood, without revealing its source. It reads:

“Thomas Babington Macaulay was a Whig liberal who was a precocious genius. Apart from having a photographic memory with which he astounded persons around him, one incident which took place when he was only five years old told the world what was in store for it when he would reach adulthood.

A lady dropped some hot coffee on the five-year old child and expressed great sorry for doing so. The child reposted, after letting out a scream, “Madam, the agony has abated”.”