Draconian law of section 377 IPC
Rape is forceful sexual intercourse, without the victim’s consent and against its will. Thus, gender should not be a criteria to assess whether the said forceful sexual intercourse comes under the category of rape, the latter being the only punishable sexual act.
Sadly, gender is a consideration and only a male can be booked for committing rape on a woman. A man cannot be booked for doing so on a man and a woman cannot be booked for doing so on a man or another woman. Hence, the definition presumed for the purpose of considering rape as an offence is quite narrow and grossly unjust.
Sexual orientation varies from individual to individual. A general line can never be drawn. It’s not always that a man is attracted to a woman or vice versa. When Michael Kirby, a former judge of the High Court of Australia and a former President of the International Commission of Jurists, delivered the 2013 Tagore Law Lectures, his theme was ‘Sexual Orientation and Gender Identity – a new province of law for India’. In 1999, J. Kirby had publically shared with the world that he was homosexual.
Homosexuality though attracts a unique sexual orientation but is definitely not an offence. While most religions condemn homosexuality explicitly, a secular country is not expected to be driven by religious bindings while making secular laws. The UDHR adopted on December 10, 1948 states that “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”. December 10 is celebrated as the Human Rights Day. Ironically, on December 11, 2013, a liberating and internationally acclaimed judgment of Delhi High Court was reversed by the Supreme Court after 4 years. The judgment by the Delhi High Court delivered on 2nd July, 2009, though welcomed by the public at large, was much criticized by the legal fraternity, claiming that it was unlawful by virtue of Section 377 of the IPC. The Supreme Court on appeal reversed the decision saying that it was against the provision under the IPC. The public and the media were all out in the open criticizing the Apex court without looking into the fact that it is the law which is defunct and the judiciary is not at fault. The much debated provision under the IPC is as follows:
“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 a 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 offence described in this section.”
Section 377 is the only law in India per se dealing with or somewhat touching the concept of homosexuality. Unlike rape, Section 377 does not talk about ‘force’ and/or ‘coercion’ and hence even consensual sexual intercourse ‘against the order of nature’ is punishable under Section 377. This provision punishes homosexuality ipso facto. Thus, the blame is to be put on the legislature and not the judiciary for such a bias provision in law.
Of lately, the so-called anti-sodomy law under the Indian Penal Code, Section 377 has been in debate. The Hon’ble Apex court in the Naz Foundation case upheld the constitutional validity of the provision and held that homosexuality is an offence, vide this provision. Now, having a look at Section 377, it punishes the person for having sexual intercourse against the order of nature, ipso facto. Unlike Section 376, Section 377 does not make it clear as to whether it applies to only non-consensual sexual intercourse or even to the consensual one. Hence, if two individuals wilfully engage in such sexual activity, they are also liable to be punished under Section 377. It is an inherent flaw in the provision and not a judicial felony. The Naz Foundation judgement cannot be criticised because the judiciary cannot go against the law. However, what can be criticised is the law itself and thus the law making body, i.e. the legislature. It is the legislature that is to be blamed for Section 377 and not the judiciary for its role of interpretation.
The Hon’ble court while delivering the judgement held and I quote:
“While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity.
Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General”
This law is a clear example of the non-application of mind while drafting the law. It is vaguer a law than the anti-rape law in India for the mere reason that Section 377 IPC does not talk about consent at all. Consensual acts, not forbidden by law, are not punishable. Thus, consensual sexual intercourse between a man and a woman is their right, whereas, non-consensual sexual intercourse with a woman is punishable by law. However, Section 377 is a perfect example to criticise the law relating to sexual intercourse in India, which, in contrast to the anti-rape law in India, doesn’t even consider ‘consent’ to be an anti-thesis of the offence it punishes for.
The Apex court in 2016 referred a batch of curative petitions against Section 377 IPC, to a five-judge constitutional bench for reconsideration. The three-judge bench of former CJI T.S. Thakur, J. A.R. Dave and J. Khehar gave credence to the arguments that the threat imposed by the provision amounts to denial of the right to privacy and dignity and results in miscarriage of justice. In his opening argument to the 3-judge Bench, hearing a batch of curative petitions against Section 377 IPC, senior advocate Kapil Sibal said: “Any provision that penalises an adult person’s expression of consensual sexuality is significantly unconstitutional.” “The matter is of such importance that it should go to a five-Judge bench”, the CJI responded.
A group of individuals on June 28th, 2016 moved the Apex court on section 377 and their plea to overturn the provision.The petition that was put forward by chef Ritu Dalmia, dancer N.S. Johar, hotelier Aman Nath, journalist Sunil Mehra and business executive Ayesha Kapur, which was scheduled to be heard before a bench of J. S.A. Bobde and J. Ashok Bhusan on 29th June. The Supreme Court declined to examine a fresh petition challenging the validity of penal provision incriminating gay sex. The Bench led by J. S.A. Bobde said that the new petition will be placed before the CJI to decline whether it should be heard along with a batch of curative petitions already pending on this issue.
A 9-judge bench of the Honourable Apex court recently, in Justice K S Puttaswamy (Retd.) and Anr. v. UOI and Ors. held right to privacy to be a fundamental right, covered under Article 21. The Honourable Court also included rights of homosexuals within the realm of privacy. While delivering the judgement, the Honourable court looked into the aspect of privacy as discussed by the Honourable Delhi High Court in the Naz foundation case as follows:
“124. Another discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy finds reflection in a two judge Bench decision of this Court in Suresh Kumar Koushal v NAZ foundation. The proceedings before this Court arose from a judgment of the Delhi High Court holding that Section 377 of the Indian Penal Code, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 15 and 21 of the Constitution. The Delhi High Court, however, clarified that Section 377 will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. Among the grounds of challenge was that the statutory provision constituted an infringement of the rights to dignity and privacy. The Delhi High Court held that: “…The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21…”. Section 377 was held to be a denial of the dignity of an individual and to criminalise his or her core identity solely on account of sexuality would violate Article 21. The High Court adverted at length to global trends in the protection of privacy – dignity rights of homosexuals, including decisions emanating from the US Supreme Court, the South African Constitutional Court and the European Court of Human Rights. The view of the High Court was that a statutory provision targeting homosexuals as a class violates Article 14, and amounted to a hostile discrimination on the grounds of sexual orientation (outlawed by Article 15). The High Court, however, read down Section 377 in the manner which has been adverted to above.”
“125. When the matter travelled to this Court, Justice Singhvi, speaking for the Bench dealt with several grounds including the one based on privacy – dignity. The Court recognised that the right to privacy which is recognised by Article 12 of the Universal Declaration and Article 17 of ICCPR has been read into Article 21 “through expansive reading of the right to life and liberty”. This Court, however, found fault with the basis of the judgment of the High Court for the following, among other reasons: “…the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” The privacy and dignity based challenge was repelled with the following observations: “In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian Legislature.”
“126. Neither of the above reasons can be regarded as a valid constitutional basis for disregarding a claim based on privacy under Article 21 of the Constitution. That “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders” (as observed in the judgment of this Court) is not a sustainable basis to deny the right to privacy.”
Hence it can be said that Section 377 IPC is a flawed provision in law and amendments in the same brook no delay. The law must be amended to exclude from its ambit consensual sexual intercourse of the nature as defined in the provision. The Parliament must amend this law which makes homosexuality an offence ipso facto.
# The Universal Declaration of Human Rights, 1948, art. 1.
# Naz Foundation v. Govt. of NCT, Delhi, 160 DLT 277.
# Suresh Kumar Koushal and Anr. v. Naz Foundation, (2014) 1 SCC 1.
# Subs. By Act 26 of 1955, sec. 177 and Sch., for “transportation of life” (w.e.f. 1-1-1956).
# Supra Note 3.
# “Celebs move SC for decriminalising consensual homosexuality”, Indian Express, New Delhi, Jun. 28, 2016.
# “SC refuses to examine fresh plea on section 377, refers matter to CJI”, Indian Express, New Delhi, Jun. 29, 2016.
# WP (C) No. 494 of 2012, decided on 24.8.2017.