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CONSTITUTIONALITY OF SECTION 377 OF INDIAN PENAL CODE

Introduction


Although the civil rights movement has gone to the extent to include a greater part of the world, but there are only few organizations whose major aim is to fight for the rights of the “Homosexuals”.


The LGBT (Lesbian-Gay-Bisexual-Transgender) activism has raised the issue of sexuality and, in particular, alternative sexuality, and argues for its 'normalcy'. The state, on the other hand, has taken exception to such democratization of 'desire' and has tried to 'discipline' it.


The present era of society is becoming much deeper and democratizing which earlier was moreover privileged to a private sphere which now is becoming more open for debate and discussion. Also, has been a drastic development in the democratization in the sphere of ‘desire’. Which significantly can’t be left un-noticed by the larger sect of society.


This review examines the provision in Penal Code of India that criminalized private consensual sex between adults. Law had led to serious discrimination against homosexual people.


  • Suffering from frequent beatings and blackmail attempts by police and neglection from society.

  • NGOs working with sexual minorities have also been harassed charged under Section 377, by stigmatizing homosexuality and threatening gay.

  • After an innovative, sustained, mass media campaign by activist’s coalition brought together sexuality and LGBT who were previously marginalized, with groups working in areas such as children's feminist groups, showing that support for non-discrimination towards sexual broad-based.

  • Further legal and social changes are needed for LGBT individual’s acceptance and equality within.

  • It is the matter of great concern for the world’s biggest democracy, not only for the LGBT (Lesbian, Gay, Bisexual, Transgender) people but also for the whole society because it is the question of validity and protection of ‘fundamental rights’ which can be referred as the structural base of democratic society and justice.

There is a need to eliminate section 377 of the Indian Penal Code as it is clearly violative of Articles 14, 15, 19 & 21 and its sub sections guaranteed as ‘Fundamental Right’ in The Constitution of India.\


Laws Involved


  • Section 377 in The Indian Penal Code 1860

377. Unnatural offences. —Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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.


  • Article 13 in The Constitution of India 1949

13. Laws inconsistent with or in derogation of the fundamental rights


(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void


(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void


(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas


(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality


  • Article 14 in The Constitution of India 1949

14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.


  • Article 15 in The Constitution of India 1949

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth


(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them


(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to


(a) access to shops, public restaurants, hotels and palaces of public entertainment; or


(b) the use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public


(3) Nothing in this article shall prevent the State from making any special provision for women and children


(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes


  • Article 19 in The Constitution of India 1949

19. Protection of certain rights regarding freedom of speech etc.


(1) All citizens shall have the right


(a) to freedom of speech and expression;


(b) to assemble peaceably and without arms;


(c) to form associations or unions;


(d) to move freely throughout the territory of India;


(e) to reside and settle in any part of the territory of India; and


(f) omitted


(g) to practice any profession, or to carry on any occupation, trade or business


  • Article 21 in The Constitution of India 1949

21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law


Case analysis


Naz Foundation V. Gov. of NCT and others


The Naz Foundation submitted that the harassment and discrimination of the gay and transgender community in India resulting from the continued existence of Section 377 affected the rights of that community which were guaranteed under the Constitution, including the right to equality, the right to nondiscrimination, the right to privacy, the right to life and liberty, and the right to health.


They argued that the Constitution protects the right to privacy (which is not expressly mentioned) under the right to life and liberty enshrined in Article 21. Furthermore, they submitted that the right to non-discrimination on the ground of sex in Article 15 should not be read restrictively but should include “sexual orientation”.


They also contended that the criminalization of homosexual activity by Section 377 discriminated on the grounds of sexual orientation and was therefore contrary to the Constitutional guarantee of non-discrimination under Article 15. Finally, the Naz foundation stressed that courts in other jurisdictions have struck down comparable provisions relating to sexual orientation on the grounds that they violated the rights to privacy, dignity and equality.

Court referred to the Human Rights Committee’s decision in Toonen v. Australia, (No.488/1992, CCPR/C/50/D/488/1992, March 31, 1994) in which the criminalization of sexual acts between men was considered a violation of Article 2 of the International Covenant on Civil and Political Rights, where a reference to "sex" was taken as including sexual orientation. On the basis of the analysis of Indian and international human rights jurisprudence the High Court declared that Section 377 was also unconstitutional on the basis of Article 15:

“We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. Further, Article 15(2) incorporates the notion of horizontal application of rights. In other words, it even prohibits discrimination of one citizen by another in matters of access to public spaces. In our view, discrimination on the ground of sexual orientation is impermissible even on the horizontal application of the right enshrined under Article 15.”


Summarizing its judgment, the High Court focused on the importance of holding the values of equality, tolerance and inclusiveness in Indian society by stating:

“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone. Those perceived by the majority as 'deviants' or 'different' are not on that score excluded or ostracized.”


Judgement


We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. 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 we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.


We allow the writ petition in the above terms.


Suresh Kumar Kaushal v. Naz Foundation115


The case concerns the constitutionality of Section 377 of the Indian Penal Code which was

enacted during the British administration in India in 1860. Section 377 created an offence of

voluntarily having carnal intercourse “against the order of nature” with any man, woman or

animal, punishable by up to ten years imprisonment or a fine. Although the provision appears to be neutral on its face, it was argued to have a discriminatory effect on LGBT persons, particularly homosexual men.


Facts-


This case concern with the constitutionality of Section 377 of IPC which was enacted in 1860 during British rule by British legal system. Section 377 of IPC i.e. Unnatural Offences which provides that any person who has involved in activities of carnal intercourse against the order of nature with any man women or animal shall be punished with imprisonment for life or may extend to ten years, and shall also be liable to fine116. In 2001 Naz Foundation a NGO working in the field of HIV/AIDS filed a petition before Honourable High Court for decriminalising sexual orientation activities by declaring section 377 of IPC as unconstitutional as this section violates Article 14, 15 and 21 of Indian Constitution . This decision was challenged in Supreme Court stating that decriminalizing of section 377 of IPB may harm to LGBT community especially the homosexual male. The submissions made before the Honourable court was that term Section 377 of IPC as unconstitutional as it is violation of Article 14, 15, 19 and 21 of

Indian Constitution.


But in 2011 the decision of Delhi High Court on homosexuals has been challenged in Honourable Supreme Court. NACO and Heath ministry filed an affidavit by stating that NACO who works for prevention and control of HIV/AIDS in India in its survey of National Sentinel and Surveillance Data 2005 found estimated that HIV in homosexuals is 8% and while in general population it is 1%. In this case the petitioner said that High Court committed a serious error by declaring Section 377 as unconstitutional by saying that the respondent does not presented any tangible material which proves the unconstitutionality of

Section 377 also they stated that affidavit filed by NACO that Section 377 throwing an

adverse effect on controlling HIV is incorporated. Many arguments present by the

challengers before Honourable Supreme Court which at last set aside the Delhi High Court

decision by stating that it does not violate Article 14, 15, 19 and 21 of Indian Constitution

also it is in the hands of parliament to amend or to repeal Section 377 but till that it is in

force.


National Legal Services Authority of India (NALSA) vs. Union of India


FACTS:


This case was filed by the National Legal Services Authority of India (NALSA) to legally recognize persons who fall outside the male/female gender binary, including persons who identify as “third gender”.


ISSUES & DECISION:


The Court had to decide whether persons who fall outside the male/female gender binary can be legally recognised as “third gender” persons. It deliberated on whether disregarding non-binary gender identities is a breach of fundamental rights guaranteed by the Constitution of India. It referred to an “Expert Committee on Issues Relating to Transgender” constituted under the Ministry of Social Justice and Empowerment to develop its judgement.


This was a landmark decision where the apex court legally recognised “third gender”/transgender persons for the first time and discussed “gender identity” at length. The Court recognised that third gender persons were entitled to fundamental rights under the Constitution and under International law. Further, it directed state governments to develop mechanisms to realise the rights of “third gender”/transgender persons.


Defining “Third Gender”


The Court upheld the right of all persons to self-identify their gender. Further, it declared that hijras and eunuchs can legally identify as “third gender”.


The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.


Fundamental Rights


The Court interpreted ‘dignity’ under Article 21 of the Constitution to include diversity in self-expression, which allowed a person to lead a dignified life. It placed one’s gender identity within the framework of the fundamental right to dignity under Article 21.


Further, it noted that the right to equality (Article 14 of the Constitution) and freedom of expression (Article 19(1)(a)) was framed in gender-neutral terms (“all persons”). Consequently, the right to equality and freedom of expression would extend to transgender persons.


It drew attention to the fact that transgender persons were subject to “extreme discrimination in all spheres of society” which was a violation of their right to equality. Further, it included the right to express one’s gender “through dress, words, action, or behaviour” under the ambit of freedom of expression.


Under Articles 15 and 16, discrimination on the ground of “sex” is explicitly prohibited. The Court held that “sex” here does not only refer to biological attributes (such as chromosomes, genitalia and secondary sexual characteristics) but also includes “gender” (based on one’s self-perception). Thus, the Court held that discrimination on the ground of “sex” included discrimination on the basis of gender identity.


Thus, the Court held that transgender persons were entitled to fundamental rights under Articles 14, 15, 16, 19(1)(a) and 21 of the Constitution. Further, the Court also referred to core international human rights treaties and the Yogyakarta Principles to recognise transgender persons’ human rights.


Further Directions


The Court held that public awareness programs were required to tackle stigma against the transgender community. It also directed the Central and State Governments to take several steps for the advancement of the transgender community, including:


1. Making provisions for legal recognition of “third gender” in all documents


2. Recognising third gender persons as a “socially and educationally backward class of citizens”, entitled to reservations in educational institutions and public employment.


3. Taking steps to frame social welfare schemes for the community


K Puttaswamy v Union of India


The Supreme Court in the case of K Puttaswamy v Union of India the right to privacy as a fundamental right. The judgement also observed that the right to privacy included preservation of personal intimacies and sexual orientation. The Puttaswamy judgement has ignited hope among the LGBTQ Community as the right to privacy can let them legally lead their life. This article is going to focus on how the Privacy judgment will influence the laws in relation to the LGBTQ people.


Society has a concept of assigning gender because it feels that it is one of the ways through which society can organize us. It has lived years with the male-female binary because of which our laws are made with such male-female assumptions. Hence, the concept of self-identifying a gender is a threat to the way in which the society wants us to exist and hence we face a lot of resistance even on a slight deviation from such gender binary.


Navtej Singh Johar v. Union of India


Facts


The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the same sex in private. Section 377 was titled ‘Unnatural Offences’ and stated that “[w]hoever 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 [a] fine.”


Decision Overview


The five-judge bench of the Indian Supreme Court (Court) unanimously held that Section 377 of the Indian Penal Code, 1860 (Section 377), insofar as it applied to consensual sexual conduct between adults in private, was unconstitutional. With this, the Court overruled its decision in Suresh Koushal v. Naz Foundation that had upheld the constitutionality of Section 377.


The Court relied upon its decision in National Legal Services Authority v. Union of India (( National Legal Services Authority v. Union of India, (2014) 5 SCC 438 )) to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity [p. 156, para. 253(i)]. The Court relied upon its decision in K.S. Puttaswamy v. Union of India and held that denying the LGBT community its right to privacy on the ground that they form a minority of the population would be violative of their fundamental rights. It held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private “does not in any way harm public decency or morality” [p. 165, para. 253(xvi)] and if it continues to be on the statute books, it would cause a chilling effect that would “violate the privacy right under Art. 19(1)(a)” [p. 224, para. 83]. The Court affirmed that that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state” [p. 142] and sodomy laws violate the right to equality under Art. 14 and Art. 15 of the Constitution by targeting a segment of the population for their sexual orientation. Further, the Court also relied upon its decisions in Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India to reaffirm that an adult’s right to “choose a life partner of his/her choice” [p. 72, para. 107] is a facet of individual liberty.


Chief Justice Misra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded. He further stated, “constitutional morality would prevail over social morality” [p. 79, para. 121] to ensure that human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.


J. Nariman in his opinion analyzed the legislative history of Section 377 to conclude that since the rationale for Section 377, namely Victorian morality, “has long gone” [p. 239, para. 78] there was no reason for the continuance of the law. He concluded his opinion by imposing an obligation on the Union of India to take all measures to publicize the judgment so as to eliminate the stigma faced by the LGBT community in society. He also directed government and police officials to be sensitized to the plight of the community so as to ensure favorable treatment for them.


J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, its “effect was to efface identities” [p. 328, para. 51] of the LGBT community. He stated that, if Section 377 continues to prevail, the LGBT community will be marginalized from health services and the “prevalence of HIV will exacerbate” [p. 368, para. 90]. He stated that not only must the law not discriminate against same-sex relationships, it must take positive steps to achieve equal protection and to grant the community “equal citizenship in all its manifestations” [p. 270, para. 7].


J. Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality” [p. 455]. She stated that the right to privacy does not only include the right to be left alone but also extends to “spatial and decisional privacy” [p. 476]. She concluded her opinion by stating that history owes an apology to members of the LGBT community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries.


Conclusion


Hence at last section 377 was held as unconstitutional except the bestiality part.



Submitted By -

Bhavna Khatwani

Hidayatullah National Law University, Raipur

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