Section 377 of the IPC
Fundamental Rights Vs Acculturation
A Division Bench of Justice A.P. Shah and Justice S. Muralidhar of Delhi High Court in its order on Jul 02, 2009, said that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.
However, the court clarified that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.” The judges also said that by adult they meant “everyone who is 18 years of age and above.” According to them “A person below 18 would be presumed not to be able to consent to a sexual act,” The Bench further said that “this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which, which would remove a great deal of confusion.” The judgment also made it clear that it would not result in re-opening of criminal cases involving Section 377 that had already attained finality.
The verdict came on a PIL plea by Delhi-based non-governmental organisation Naz Foundation that the Section 377 provision criminalising sexual acts between consenting adults in private violated Articles 14, 15, 19 and 21 of the Constitution. The Foundation works among sex workers in Delhi.
Would Legalise Homosexuality?
High court bench said that Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual. It observed that the inclusiveness that the Indian society traditionally displayed in every aspect of life manifested in recognising a role in society for everyone. "Those perceived by the majority as deviants or different are not on that score excluded or ostracised," the Chief Justice writing the judgement for the Bench, said. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination, it said. "This was the spirit behind the resolution of which Jawaharlal Nehru spoke so passionately," the Bench said referring to the Objective Resolution moved by him on December 13, 1946 at the Constituent Assembly debate.
Quoting Nehru, Justice Shah said "words are magic things often enough, even the magic of words sometimes cannot convey magic of human spirit and of a nation's passion ...(this resolution seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in near future)". He said Nehru was of the view that the House should consider the resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that resolution.
The Bench was critical of the provision of section 377 of IPC holding that a provision of law branding one section of people as criminal based wholly on states' moral disapproval of that class goes counter to equality guaranteed in the Constitution.
The provision of section 377 runs counter to the Constitutional values and the notion of human dignity which is considered to be cornerstone of our Constitution. Section 377 in its application to sexual act of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited grounds of sex, the Bench said. It said that any discrimination on the grounds of sexual orientation was against Article 15 of the Constitution which prohibits any discrimination on grounds of sex, religion, caste or place of birth. According to bench that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. The Bench pulled up the government for its stand that judiciary should refrain from interfering on the issue as it pertains to legislative function coming under the ambit of Parliament.
A Constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take it out of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problem, the Bench said quoting a Supreme Court judgement. The High Court judgement assumes importance as the Government was still grappling with the option to scrap section 377 from the statute.
When the verdict was reserved on November 7,2008, the previous UPA government had vociferously opposed scrapping of section 377 of the Indian Penal Code which prescribes punishment upto life imprisonment for indulging in unnatural sexual acts. There were contradictions within the Government as the Home Ministry had opposed scrapping of section 377 while Ministry of Health came out openly in support of the gay rights activists.
The Government later sidelined the stand of the then Health Minister Ambumani Ramadoss and opposed the PIL by describing homosexuality as "the most indecent behaviour" in society. The Centre had submitted that gay sex is immoral and reflection of a perverse mind and its decriminalisation would lead to moral degradation of society. "Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised in the country," the government had contended and added that allowing gay sex would pose a health hazard to society. The Centre had said that homosexuals comprise only 0.3 per cent of the population and the right of rest 99.7 per cent of the population to lead a decent and moral life in society would be violated if such behaviour (gay sex) is legalised.
The gay rights activists had contended that the government is infringing upon their fundamental right to equality by criminalising homosexual acts on the ground of morality. "The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated," they had contended. Earlier, the government had put a contradictory stand on the issue with the Home Minister of the then UPA government favouring the retention of the penal provision for homosexual acts while the Health Minister opposed the enforcement of Section 377 in cases involving consenting adults. But when the day-to-day hearing began on the case, the government set aside the stand of the Health Ministry and opposed the plea of gay rights activists
Need of Debate
Hope that the Section 377 of the Indian Penal Code would be either quickly repealed or suitably amended-raised when the Union Home Ministry boldly described it as an absurdity in the present day have receded with the Law Minister, Veerappa Moily, announcing that the Centre was in no hurry to take such a step. Calls for a parliamentary debate to reach a wider consensus on a basic issue of human rights and equal justice are nothing but an excuse to put off a hard decision on ending an obnoxious colonial-era provision that has absolutely no place in the statute book of a modern democratic and secular state.
Section 377, which punishes carnal intercourse against the order of nature with imprisonment up to 10 years, is not specifically targeted at homosexuality. But by criminalising any penetrative sex that does not lead to reproduction, it has become a weapon in the hands of the police to harass those who have alternative sexual orientations. It also stands out as a symbol of 19th century intolerance.
Suggestions that Section 377 would be reviewed coincided with hundreds of members of the LGBT (lesbian, gay, bisexual, transgendered) community dancing and marching through the streets of five Indian cities to mark the 40th anniversary of the Stonewall uprisings in New York, now a universal symbol of gay resistance to obscurantist oppression. What is clear is that the gay rights movement is slowly coming of age in India emboldened by such developments as President Barack Obama’s promise to bring the full spectrum of equal rights to LGBT Americans and his administration’s decision to endorse a United Nations resolution calling for the worldwide decriminalisation of homosexuality. In an age where there is growing acceptance of the idea that LGBTs must be allowed to live in dignity and respect. Having promised to review this provision, the government must not give in to the pressure of religious fundamentalists, moral obscurantists, and others who argue that Indian society is not ready to accept such change. Especially on non-negotiable social issues, governments must lead public opinion not tail its least enlightened strands or go for the lowest common denominator.
Initiation to Opposing Section 377
In 2001 Naz Foundation (an NGO related to HIV/Aids issues) filed a petition in the Delhi High Court asking for Section 377 to be read down by decriminalising consensual sex among adults. In September 2003, the Government insisted on retaining Section 377 on the grounds that Indian initiation society’s disapproval of homosexuality was strong enough to justify it being treated as a criminal offence even where adults indulge in it in private.
In February 2006, the Supreme Court ordered the High Court to reconsider the constitutional validity of Section 377. The Naz Foundation petition was supported by Voices Against 377, comprising 12 organisations across the country while it was being opposed by the government of Delhi and others. The position of the government (represented by the Ministries of Health and Law) has been conflicted while many of its affiliates demanded decriminalisation.
Naco (National Aids Control Organisation) demanded the scrapping of Section 377 as it was obstructing effective health interventions. The 172nd report of the Law Commission of India and the recommendations of the National Planning Commission for the 11th Five Year Plan also demanded decriminalisation of homosexuality. In the last two decades, LGBT activism played a major role in creating awareness on the issue.
In 2006 writer Vikram Seth released a public letter demanding that the cruel law be struck down. The letter was supported by a large number of signatories including Captain Lakshmi Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal, Shubha Mudgal, Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the scrapping of the brutal law that punitively criminalises romantic love and private, consensual sexual acts between adults of the same sex while being used to systematically persecute, blackmail, arrest and terrorise sexual minorities. Amartya Sen also asked for an abolition of the colonial era monstrosity that ran contrary to the enhancement of human freedom and India’s commitment to democracy and human rights. Like all laws, Section 377 was used both inside and outside the courtroom.