I have often heard from many kinksters that the practice of kink is illegal in India. That if you are found to be practicing BDSM, you can be arrested, or keeping toys like a flogger or handcuffs is not safe and you can be prosecuted. This view is mostly prevalent among the members of the online social networking communities I have interacted with in the last 10 years. They, however, do not hesitate to upload a photograph of their naked genitalia to be viewed by the entire world!
What is at work here is the police stationed within our own heads. If we perceive something to be wrong, then immediately we start believing it to be ‘illegal’. As a lawyer practicing criminal law for more than 15 years, I am yet to come across any provision of law which makes the practice of consensual BDSM an offence. Under the Indian law, post the judgment of the Apex Court in the case of Suresh Kumar Koushal and another vs Naz Foundation and others, Section 377 of the Indian Penal Code, 1860 has been held to be Constitutionally valid thereby making non peno-vaginal penetrative intercourse an offence punishable under law. It might not be out of place to mention that the law in Britain, however, has been changed by the introduction of The Sexual Offences Act, 1967 which has decriminalized homosexual behavior among consenting adults over 21 years of age.
The reason I mention Section 377 is that this is the only provision under the Indian Penal Code, 1860 where it is not a necessity to have an aggressor and a victim for commission of an offence. Even if two or more adults voluntarily and consensually indulge in activities as described under Section 377, then both or all of them can be prosecuted.
It says, and I quote:
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 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 offense described in this section.
This law has its foundation in the then understanding of ‘order of nature’ and was highly influenced by the Judeo- Christian morality. Till date, unfortunately, we are following the same. In the practice of kink, if there is penetration of the penis into the mouth or anus of the partner, then it will fall within the prohibition of section 377 IPC and will be construed to be an offence. It is often debated whether the instrument of penetration must necessarily be the penis or whether insertion by a finger into any of the bodily orifices will also constitute ‘carnal intercourse against the order of nature’. The law is ambiguous and unclear. In the hand of an oppressive State it can, therefore, be misused.
However, there is no law in the country which expressly prohibits the practice of BDSM. I believe the law makers are till date not aware of kink and that there is a sizable community practicing it, albeit in secrecy. On the contrary, Section 87 of the Indian Penal Code, 1860 says:
87. 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.
This provision of law protects combative sports like boxing and martial arts. If a person is not killed or a grievous hurt, as defined under Section 320 IPC, is not caused and if the sufferer has consented to such activity then the person who caused the hurt cannot be prosecuted. Though in India the situation has not arisen till date, but if it does then it can very well be argued that the submissive consented to the flogging and/or caning and the dominant can’t be prosecuted for the same. However, it is to be debated within the community whether the players should sign a written consent before engaging in a session to protect the interest of all the parties. If consenting adults are indulging into bondage or even taking a submissive out with a collar on, there is no law in the country which makes such act illegal. Oh, I do not mean JUST the collar! This brings us to the last point.
What is important to understand are the obscenity laws in the country. Under section 292 IPC a photograph, painting, book etc will be deemed to be obscene if it is “lascivious or appeals to the prurient interest” or it can “tend to deprave or corrupt person” who are likely to see it. However, if such display or object is for the purpose of religion or educational purpose then it will fall within the exception to the section. Now whether the display of your genitalia falls within the said exceptions is for you to prove! If not then having a cock as your display picture in social networking sights might land you in a State sponsored cage!
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