Section 377: Section 87 IPC protects homosexual acts between consenting adults, Mahesh Jethmalani

Section 87 of the Indian Penal Code (IPC) which falls under the chapter of General Exceptions will protect consensual homosexual activity between adults, submits Senior advocate Mahesh Jethmalani on behalf of activist Harish Iyer..In his written submissions to the Supreme Court on behalf of Iyer, Jethmalani has submitted that Section 377 is ultra vires the Constitution and even otherwise consensual sexual acts between adults irrespective of gender and orientation are protected by Section 87 of IPC..Section 87 of IPC reads as follows:.“Act not intended and not known to be likely to cause death or grievous hurt, done by consent.—Nothing which is not intended to cause death, or grievous hurt, and which is not known by the doer to be likely to cause death or grievous hurt, is an offence by reason of any harm which it may cause, or be intended by the doer to cause, to any person, above eighteen years of age, who has given consent, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. .Illustration A and Z agrees to fence with each other for amusement. This agreement implies the consent of each to suffer any harm which, in the course of such fencing, may be caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.”.The section prescribes that apart from offences involving death or grievous hurt, consent by a victim or a participant in the act, which would otherwise constitute an offence, negates the commission of the offence irrespective of any harm that may be caused..Incorporating the principle of section 87 into section 377 IPC, carnal intercourse against the order of nature by members of the LGBT community ceases to be an offence when it is engaged in by consenting adults, the written submission by Jethmalani states..Consent as a factor negating an offence pervades almost every offence under the IPC of a sexual colour, he has stated..“Examples are to be found apart from Rape in section 376 (B) IPC, section 354 IPC (the overt acts in which offence consists of assault or the use of criminal force both of which expressions are predicated on the absence of the victim’s consent), section 354 A under which the phrases “unwelcome overtures”, “demand for sexual favours”, “showing pornography against the will of a woman” all denote an absence of consent. Section 354 B IPC (the overt act consisting of assault and criminal force), section 354 C IPC (which punishes voyeurism and consists of a man watching or capturing the image of the woman, engaging in a private act of which he is unaware and therefore without consent and part.Thus, consent generally negates an offence and particularly in sexually-coloured offences, the absence of consent of the victim is invariably an ingredient of the offence..Thus, an exception has to be made with respect to Section 377, by recognizing that the act contemplated by the provision ceases to be an offence if engaged in by consenting adults of sexual orientation..Read a summary of the four-day hearing in the Section 377 case here..Read the written submissions of Mahesh Jethmalani below.