This article is written by Ashutosh Rajput, a student of Hidayatullah National Law University, Raipur. In this article, the author has explained the concept of BDSM., its legality and its position in India.
Table of Contents
Introduction
The depicted act in the 50 Shades series which got released in the motion as well as in the printed form has been endorsed by many individuals after its release, which in wordy parlance known as BDSM, also known as Bondage and Discipline, Dominance and Submission, Sadism and Masochism. BDSM basically means hardcore sexual intercourse other than vaginal intercourse or can also mean to be the submission of pain to gain sexual pleasure. It is basically voluntary slavery and is not just about sexual intercourse but more about a power play. It is such pain that initiates the legal perspective as it sometimes causes injury to the party by including wide range of plays such as breathe play and asphyxia.
To initiate the process of BDSM there is the requirement of two or more than two individuals of which one will act as a submissive and other will act as a dominatrix to such practice so as to inflict pain on the submissive with consent. The term ‘pain’ in sexual parlance according to Cambridge Dictionary means ‘a feeling of physical suffering caused by injury or illness or emotional or mental suffering’. The pain is inflicted on submission by spanking, slapping, or by using kinky objects such as under-bed restraint kit, blindfold, flogging, bondage tape, low-temperature candles, cover clamps, etc.
The fundamental aim of BDSM practice is to gain sexual pleasure but the term sexual pleasure is ambiguous as it would include a variety of activities in its ambit such as doctor’s examination of the private part may arouse sexual pleasure act, so it is prima facie to understand sexual pleasure in a literal sense.
History and Origin
The practice of BDSM dates back to the Greek period of Mesopotamia wherein the Inama, also considered as the fertility god, whip her subjects to initiate the process of sexual arousal internally. The ancient Indian Sanskrit text on sexuality known as Kama-Sutra also had sown seeds with respect to such practice, wherein it mentions six applicable place/part of individual’s body to strike at and such part includes shoulders, head, the back, space between the breast, jaghana, the sides and also texts also mentions four ways to strike at such parts and includes striking with the elbow, striking with the fist, striking with an open palm, striking with fingers. And according to the 2005 Durex Global Survey 36% of people have already practiced BDSM even before the release of the 50 Shades franchise which makes it clear that such an act was very much prevalent in older times.
Legality of BDSM
It is to be noted that the legal validation and practice of BDSM vary from country to country. For instance, the United States of America previously legalized such practice but later made it punishable but not criminalized or banned the very act. The United States Supreme Court in the case of Lawrence v. Texas, laid a landmark ruling and made it clear that if someone is indulging in such activity then he/she has true sexual freedom and further laid down that sexual intercourse is an integral part of our identity and if the state can grant homosexuality as a non-criminal offence then criminalizing BDSM will curb their natural right and the fundamental goal of BDSM is pain and not the injury and as soon as there is the infliction of injury then this natural right will be abandoned. But later in the case of Doe v. Rector & Visitors of George Mason University, the court laid down that there is no constitutional right to indulge in such practice in America. The motive behind this judgment was to give more rights to females as in the majority of cases females predominantly inflict pain by acting as submissive and it ultimately leads to inequality hence unconstitutional.
In Japan, Netherland, Germany, it is legal to practice BDSM whilst there are some countries whose legal status is unclear, for example Austria.
Position in India
After the landmark ruling in the case of Navtej Singh Johar v. Union of India, the Supreme Court explicitly made carnal intercourse as a non-criminal offence so it can be said that the practice of BDSM has valid legal status in India. But it is still ambiguous as BDSM is not just a play of carnal intercourse but it is also a play of pain which is done by various kinky objects and as per the above judgment. It only talks about penetration through penis non-criminal and it does not talk about penetration through an object.
It is worth noting that Justice Deepak Misra while laying down the judgment also made it clear that ‘criminalizing carnal intercourse would be unconstitutional’ and not made any reference with respect to penetration, so it will be the matter decided by the legislature. Ultimately it is prima facie that it has legal validation and there is no law which makes bondage an offence as no case arose till date.
Role of a Contract
Ultimately law of contract plays a major role throughout the activity therefore there is a contractual obligation between the parties who are going to indulge in such activities. And the contract includes two major aspects within it i.e. consent and coercion. Before initiating BDSM the parties need to sign a contractual deed which is for their safety, though this contract is unenforceable in a court of law but will act as proof if at a later time one of the parties approaches the court of law to prosecute the other party with malicious intention.
Consent
According to the law of contract, consent is said to be given when both the parties mutually agree with the agreement having lawful consideration. So initiation of BDSM requires consent. The pain inflicted on the individual in such an act is through consent. If the pain is inflicted without the consent of the respective party then it will come under the purview of assault and battery. Predominantly, no contract can be made with irrevocable consent as it would ultimately infringe public policy. In order to revoke consent safewords have to be made which is decided prior to the act. It is worth noting that such a contract only recognizes express consent and does not recognize implied consent.
Therefore consent plays the major role from initiation of an act to the end of the act. Here the consent is not only the consent taken prior to such activities but the consent which should remain throughout the practice, the moment the submissive takes back her/his consent the dominatrix has to stop and if dominatrix still continues inflicting pain on submissive then it will come under the category of rape as per Section 375 of Indian Penal Code. The Canada Supreme Court, in the case of R v. J.A., ruled that an individual must have an active mental status functioning throughout the play.
While the United Kingdom’s House of Lords in the case of R v. Brown, held that the consent is immaterial is not a valid defence and hence BDSM doesn’t have valid status in the UK. And German law doesn’t stand its base on consent rather they lay more emphasis on morality.
Consent as to infliction of pain is still ambiguous as in legal perspective a person cannot consent to bodily harm and if consented to such harm then such activity will come under assault. If there are bruises, rashes, or such bodily injury which is prima facie then under the law it will be considered as bodily harm and the consent will be irrelevant. If an individual consent to be killed, it will be ambiguous then how can a person consent to inflict pain? This question came up in Canada’s court which considered that where there is social value connected then you may consent and the consent will be the valid one and such act includes fighting in UFC, recording a fighting scene in movies, MMA, etc. And BDSM at par doesn’t have any social value.
But in India as per Section 87 of Indian Penal Code, which states that “act which is not intended to cause death or grievous hurt to a person who consented to suffer harm being above 18 years of age will not be an offence” and it does not include exception as to consent having social value, unlike Canada.
Under Indian Law, Section 354A (1)(iv) of Indian Penal Code, explicitly states that if a man committing of making sexually coloured remarks, shall be guilty of the offence of sexual harassment. But there is no mention of prior consent under IPC so ultimately the consent will be immaterial and there is no mention of the provision for a male if he had such bruises while playing submissive and female playing dominatrix. The Indian Law is still ambiguous but as stated earlier no case arose till date.
Coercion
As far as India is considered the parties have the right to practice BDSM but they do not have the right to forceful practice.
Illustration: ‘A’ indulges to play BDSM with ‘B’ and had a prior contract but later on ‘B’ refrain from doing such act and ‘A’ says to ‘B’ that if she does not play with him he will commit suicide then such actions will come under the purview of coercion and will not be voidable but void. A person cannot force someone to indulge with him to do sex otherwise it will come under sexual assault.
Arguments in favour of BDSM practice
Article 21: Every individual living in India has a fundamental right to livelihood and livelihood includes the right of making decisions about their personal life. So there is no matter of interference of the Court except when necessary and the act will directly come under privacy legislation, the same should be judged by the court with a high level of scrutiny. After the landmark judgment in Puttaswamy case, the right to privacy was made the fundamental right under article 21, so directly an individual has the right to practice those very practices in privacy.
Custom overrules the law: It has been seen that BDSM has been followed since ages, from the Vedic period as it found its base in Kama Sutra so it has achieved customary status and no law can infringe this status.
Contract-based: It is to be noted that the act is contractual in nature and made with the consent of both the parties so the terms and conditions are ought to be clear to both the parties and will act in the same manner.
Article 14: Such practice initiates more equality among parties as BDSM is practiced irrespective of one’s gender, religion, and caste.
Psychological Aspect: According to the Journal of Sexual Medicines by Dr. Justin Lehmiller, people who indulge in BDSM are found to have more emotional stability, more self-confidence, and lower levels of insecurity.
Arguments against BDSM practice
Legislation: There is no proper/fundamental legislation to govern such activities and without it, the level of pain infliction and punishment cannot be ascertained.
Human Perception: Human perception is such that the individual does what he/she wants irrespective of thought of sanction. For instance, an individual has knowledge that murder is a crime and still does it and the same applies to this practice though this practice is not crime but may become crime subsequently with the more infliction of pain than the said limit.
Violence: Infliction of pain for the sake of pleasure can sometimes cause violence in the view of an ordinary individual and the same should be governed under IPC.
Ambiguous power play: In the case of Doe v. Rector & Visitors of George Mason University, the female resisted but the male still continued his action as against BDSM and he stated that she hadn’t used safewords. Here it is clearly seen that there is the use of power to fully control the submissive against her will. Therefore, the practice becomes prima facie confusing.
Public Policy: Many a society considers BDSM as a taboo and indulging in such practice within the society may cause hindrance to public policy. In India, though the Directive Principle of State Policy is directive in nature and not compulsory, the same should be given utmost importance.
Concluding Remarks
For the time being there is no fundamental legislation to govern such activity and if any legislation with respect to such practice gets enacted then the country should judge the act more on the basis of psyche desire of indulging parties and less on the basis of law. It is to be noted that the ordinary citizens of a country should make people aware of its limits and how a healthy BDSM can be achieved. Therefore, prior to initiation of such act and after completion of activity there should be proper medical examination and most importantly there should be guards guarding them. Such an act, however, while guarding may infringe privacy so it is upon the party’s discretion. And the act should be done considering the mental and health status of parties. If a certain act is illegal with respect to the state then the parties should refrain from doing it, for instance, slapping a girl, punching on her body or piercing a needle through her skin.
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