Constitutionality of Section 377

Introduction

Indian legal system adopted most of the laws from the common law system and the basic foundation of the Indian legal system took place during the British era. Section 377 is one of the most debatable provisions of IPC as it deals with the offence of unnatural intercourse.  Section 377 of the Indian Penal Code was introduced in 1864 during the British rule in India. Its basic model is based on the Buggery Act of 1533 by the British Parliament during the reign of King Henry VIII. It criminalized sexual activities “against the order of nature”.

It was in 1290 when the common law in England recognized the crime of sodomy when it was written in Fleta,1290 and later in Britton,1300.[i] Both these texts prescribed death punishment for the offence of sodomy.[ii] Later the Buggery Act was passed so that the government is empowered to check sodomy and bestiality and also provided the punishment for offenders who violate the law. Before the enactment of the Act the offences related to Unnatural intercourse were deal with by the Church courts [iii]. In IPC Section 377 was formulated in 1860 by Lord Macaulay, the then President of Law Commission. The Law Commission was appointed to draft IPC. Laws against unnatural intercourse prevailed in most of the British colonies.  Homosexuality prevailed in England until the British decriminalized homosexuality bypassing the Sexual Offences Act[iv] .In India, it took more than 50 years to realize that homosexuality needs to be decriminalized. The LGBTQ community has always been vulnerable to exclusion, harassment and stigmatization by the orthodox Section of the society.

According to Section 377 of Indian Penal Code “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 used to treat consensual sexual acts by adults of the same sex as an offence and provides punishment with imprisonment of life.  [v]

Section 377 penalized a Section of society for being a sexual minority. The petition was not only filled to seek protection as sexual minorities but also to ask for the recognition of characteristics inherent in all human beings. It was argued that the right to sexuality, sexual autonomy and freedom to choose a sexual partner form the cornerstone of human dignity. [vi] Section 377 has a “chilling effect” on the right of equality, liberty, life, dignity and non-discrimination on the ground of sex. [vii]It was the historic day of 6th September 2018, the Supreme court of India declared that the application of Section 377 to consensual homosexual intercourse between adults was unconstitutional, ” irrational, indefensible and manifestly arbitrary”.[viii] This doesn’t mean that Section 377 has been struck down or removed from the statute. Section 377 remains in force and deals with an offence related to intercourse with minors and nonconsensual sexual acts, and bestiality.[ix]

Constitutionality of Section 377- Case Laws

Section 377 is 150 years old provision of IPC dealing with penal provisions for homosexuality. This interpretation of this provision was very arbitrary as it failed to ensure equality, liberty, right to life and dignity and was earlier discriminatory on the grounds of sexual orientation. A writ petition was filled by AIDS Bhedbhav Virodhi Andolan to provide equal treatment to the LGBTQ community. Established in 1988 AIDS Bhedbhav Virodhi Andolan is India’s 1st AIDS activist movement. 

AIDS Bhedbhav Virodhi Andolan v. Union of India and Others[x]  

A writ petition was filed by ABVO challenging the Constitutional Validity of Section 377 of IPC. It was also pleaded that condoms must be made available to inmates in Tihar Jail in New Delhi. But the then Inspector General of Police, Kiran Bedi and Superintendent of Tihar Jail refused distribution of condoms to male inmates. This distribution was denied because if condoms are provided to male inmates then this would encourage homosexual activities in the Jail. However, the petition filed by ABVP was dismissed. This was the first instance where the Constitutionality of Section 377 was challenged in our legal system.

Naz Foundation v Government of NCT of Delhi [xi]

In December 2001 a PIL was filled by Naz Foundation in Delhi High court seeking amendment in Section 377 or change in interpretation of the Section as it violated Article 14 (Right to Equality), Article 15 (Prohibition of discrimination on grounds of sex), Article 19 (Right to Freedom) and Article 21 (Right to Life and Liberty) and also demanded the legislation of homosexuality. But in 2004 a Division Bench of Chief Justice B. C. Patel and Justice Badar Durrez Ahmed dismissed the petition of Naz foundation which challenged the constitutionality of Section 377 of IPC. The petition was dismissed on the basis that there was no cause of action to entertain the petition and the plea cannot be maintained because it is a mere academic issue. Then a review petition was filed Naz Foundation which was again dismissed. Both the orders were challenged by Naz Foundation and the writ petition was filed for a fresh decision in 2006.

In 2004 when the petition was dismissed by the high court of Delhi the petitioners moved to Supreme Court and an SLP was filled. Supreme Court reverted the case to the High Court and said that the High Court should reconsider the Dismissed petition because the petition involved an issue of public interest and hence it should be entertained. Subsequently, many human rights activists, a coalition of NGO’s and Child Rights organizations became the intervening party and joined the petition.  According to the Naz Foundation, Section 377 IPC had created a class of vulnerable people who were continuously victimized and were directly affected by the provision of Section 377.

It was further submitted that the prevailing interpretation of Section 377 violated Articles 14, 15, 19, and 21 of the Indian Constitution. The LGBT Community experienced discrimination, denial of Fundamental Rights and continuous harassment and abuse. It was submitted that the expression “sex” as used in Article 15 cannot be read restrictively to “gender” but includes “sexual orientation” and, thus read, equality based on sexual orientation is implied in the said fundamental right against discrimination. [xii]It was also submitted that there exists a situation for consensual sexual intercourse (of the kind mentioned above; i.e. homosexual) between two willing adults in privacy then they need to be saved and accepted from the penal provision contained in Section 377IPC.[xiii]

On the contrary, the Centre Government including the Ministry of Home Affairs and National Aids Control Organization (NACO), a division of the Ministry of Health and Family Welfare filed separate affidavits. Ministry of Home Affairs argued against the decriminalization of Section 377, on the other hand, NACO argued for the criminalization of Section 377 hindered efforts to HIV/AIDS. It was further argued by the central government that Gay Sex was immoral and decriminalization of homosexuality would lead to the moral degradation of society.

 A Division Bench of Justice A. P. Shah and Justice S. Muralidhar, in the landmark judgment of Naz Foundation v. Government of NCT of Delhi[xiv], stated that Section 377 violates Article 14, 15 and 21. The Delhi High Court in this 105 pages judgment decriminalized the consensual sexual acts of the same gender and held penal provision as “illegal”. Section 377 was not struck down as a whole instead the court decriminalized a portion of Section 377 or an interpretation of the said Section. The High Court held, “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 Delhi High Court opined that social morality must succumb to the concept of constitutional morality. [xv] The Court further held, “The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.” [xvi]But many religious groups and individuals were not happy with the judgment and hence challenged the decriminalization of Section 377 and moved to Supreme Court to seek action against the verdict. Between 2009-2012, Fifteen special leave petitions were filled in the Supreme Court out of which seven petitions were intervention applications. Five petitions were in support of decriminalization of Section 377 while two were against it

Suresh Kumar Koushal & Anr[xvii]

In 2013, the story of decriminalization of Section 377 took another turn and the Supreme Court in the case of Suresh Kumar Koushal v. Naz Foundation upheld the Constitutional validity of Section 377 and overruled the 2009 verdict of the Delhi High Court. Section 377 of IPC was reinstated in this case [xviii].the court said that judicial intervention is not required. It was further stated by the apex court that it is the duty of the Parliament for deciding whether to amend or repeal the Section. In 2009, the argument that consensual same-sex sexual relations between adults should be decriminalized was accepted by Delhi High Court.   It was considered that such criminalization was in contravention of the Constitutional rights to life and personal liberty, equality before the law and non-discrimination. The decision of Delhi High Court was challenged and appealed to the Supreme Court on the basis that the moral, cultural and religious values of Indian society at large areas to be protected. On the other hand, it was argued by the respondents that Section 377 caused harm to the LGBT community and particularly to the homosexual men.

The Appellants stated that the decision of the High Court lacked documentary evidence and was not sufficient to prove that the LGBT Community is facing discriminatory treatment by the law. It was further stated that Section 377 controls the seriousness of the decease of HIV/AIDS from spreading and decriminalization of the Section would adversely increase the rate of HIV/AIDS infection. It was further argued that Section 377 of IPC is gender-neutral and covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act.

It was submitted before the honourable court that Section 377 does not violate the right to privacy and dignity enshrined under Article 21 of the Indian Constitution. Its appellants also raised the issue that the judgment of Delhi High court would hamper the institution of marriage and it would promote homosexual activities. The respondents then counter-argued that Article 21 of The Constitution of India guarantees sexual rights. The criminalization of activities of sexual intercourse between homosexuals would restrict their right to dignity, personhood and identity, equality and the right to health. Sexual intimacy is as important as any other necessity for psychological wellbeing and criminalization of such activities would deprive homosexuals of this. It was further submitted that Section 377 is vague and leads to continuous harassment and abuse of LGBT persons. [xix]

 On December 11, 2013, a two-Judge Bench of Supreme Court allowed the appeal and the earlier decision of Delhi High Court in 2009 were set aside. The Division Bench of Justice G. S. Singhvi and Justice S. J. Mukhopadhaya declared the decision of High Court as unconstitutional and held that it is not in violation of Article 14, 15 and 21 of the Indian Constitution. The Supreme Court said, “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”[xx] The Court further held, “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 377IPC 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 377IPC from the statute book or amend the same.” [xxi]

The court also stated that the LGBT community comprised only a “minuscule fraction of the total population” and the mere fact that the powers under Section 377 were misused by the police was not a reflection of the constitutional validity of the Section. Further, it was held that Section 377 IPC applied irrespective of age and consent and that it did not criminalize a particular person or identity or orientation. Section 377 only identified certain acts which, when committed, would constitute an offence. The Bench further observed that such a prohibition regulated sexual conduct regardless of gender identity and orientation.

The aftermath post re criminalization.

After Suresh Kumar Kaushal’s case, the situation concerning homosexuality in India changed drastically. The decision of India to re-criminalize homosexuality was condemned by the then UN Secretary-General Mr. Ban ki-moon.  Many international organizations came forward to help oppressed Section of the society gain back respect and get equal treatment  On 18th December 2015 Mr. Shashi Tharoor member Lok Sabha from India National Congress supported LGBT rights and a private member’s bill was introduced by him to replace Section 377 of the IPC and to decriminalize consensual same-sex relationship. But unfortunately, the bill was defeated in the first reading itself. Though in 2016 Mr. Tharoor tried to reintroduce the bill it was again voted down.

Next big breakthrough in the fight for the legalization of LGBTQ rights was when in the case Justice K.S. Puttaswamy vs Union of India, Supreme Court upheld the right to privacy and said that sexual orientation was an “essential component of identity” and rights of LGBTQ persons were “real rights founded on sound constitutional doctrine”. [xxii]In 2017, a nine-judge bench of the Supreme Court in this case, unanimously ruled that the Constitution established a fundamental right to privacy creating a zone of personal autonomy within which the State cannot intrude. Some of the judges openly doubted the correctness and validity of the Suresh Kumar Koushal judgment. The judges led by Justice Chandrachud who stated that the right to privacy and the “protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution laid the jurisprudential foundation for the Navtej Singh Case.

After the Right to Privacy judgment Supreme court in case of National Legal Services Authority v. Union of India declared transgender people to be a ‘third gender‘, and affirmed the all the fundamental rights granted under the Constitution of India will apply to transgender people also, and provided the right to self-identification of their gender as male, female or third-gender. This judgment is considered a major step towards gender equality in India.[xxiii]

Navtej Singh Johar v Union of India[xxiv]

A writ petition was filed which was different from pending appeals of Naz foundation. This writ petition challenged the Suresh Kumar Koushal judgment and was referred to a larger constitution five-judge bench which unanimously overruled Suresh Kumar Koushal’s judgment. The Supreme Court pronounced 4 separate judgments first by the Chief Justice of India writing for himself and A.M. Khanwilkar second by Justice Rohinton Nariman third by Justice Dhananjay Chandrachud forth by Justice Indu Malhotra. The decision of the court was based upon National Legal Services Authority v. Union of India [xxv] to reiterate that gender identity is intrinsic to one’s personality and denying the same would be violative of one’s dignity[xxvi].

The Court relied upon its decision in K.S. Puttaswamy v. Union of India[xxvii] 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”[xxviii] 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)”[xxix]. The Court also affirmed that that “intimacy between consenting adults of the same sex is beyond the legitimate interests of the state”[xxx] 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 considered its decisions in Shafin Jahan v. Asokan K.M.[xxxi] and Shakti Vahini v. Union of India [xxxii]to reaffirm that an adult’s right to “choose a life partner of his/her choice”[xxxiii] is a facet of individual liberty. Chief Justice Mishra (on behalf of himself and J. Khanwilkar) relied on the principles of transformative constitutionalism and progressive realization of rights and held 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”[xxxiv] to ensure that the human rights of LGBT individuals are protected, regardless of whether such rights have the approval of a majoritarian government.

J. Nariman analyzed the legislative history of Section 377 and held that since the rationale for Section 377, namely Victorian morality, “has long gone”[xxxv] there was no reason for the continuance of the law. He concluded his view by imposing an obligation on the Union of India to take all measures to publicize the judgment 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 to ensure favourable treatment for them. J. Chandrachud in his opinion recognized that though Section 377 was facially neutral, its “effect was to efface identities”[xxxvi] 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”[xxxvii]. 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”[xxxviii].

J. Malhotra affirmed that homosexuality is “not an aberration but a variation of sexuality”[xxxix]. 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” [xl]. 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.

Findings in Navtej Singh Johar Case

Violation of Article 14

It was held that Section 377 of IPC violated article 14 of the Constitution of India and lacked a reasonable nexus with the object of protecting women and children, as the non-consensual acts which were being criminalized by Section 377 of IPC had already been considered as penal offences under Section 375 of IPC and the POCSO Act.

Section 377 has resulted in a distasteful and objectionable collateral effect which even includes ‘consensual acts’, which are not harmful to children or women and are performed by a certain Section of people (LGBTs) due to some inherent characteristics defined by their identity and individuality. LGBTQ Section of the society has been wrongfully targeted. This discrimination and unequal treatment to the LGBT community is unconstitutional for being violative of Article 14 of the Constitution.

Violation of Article 15(1)

Section 377 of IPC imposed discriminatory grounds based on the sexuality of an entire Section of society (LGBT). This was a clear contravention of Article 15(1) of the Constitution.

Violation of Article 19

the argument on the grounds of public order, decency and morality cannot be used to limit the fundamental right of expression including choice. Section 377 of IPC includes in its ambit the private acts of adults including the LGBT community which are consensual and are also innocent, and neither cause disturbance to the public order or peace nor are they injurious to public decency or morality.

Further, display of affection amongst the members of the LGBT community towards their partners in the public so long as it does not amount to indecency or has the potentiality to disturb public order cannot be considered immoral just based on some orthodox ideologies. Section 377 of IPC laid down an unreasonable restriction as it made carnal intercourse between consenting adults within their private space, a punishable criminal offence. This was held to be manifestly overboard and vague but also had a chilling effect on an individual’s freedom of choice. Therefore, the restriction imposed by Section 377 is unreasonable and does not meet the criteria of proportionality and is violative of the fundamental right of freedom of expression including the right to choose a sexual partner.

Violation of Article 21

Section 377 abridges both human dignity fundamental right to privacy. As privacy includes sexual orientation as an essential, the right to privacy includes within its ambit, the right of every individual including that of LGBT to express their choices in terms of sexual inclination without fear of punishment. The court stated that Section 377 IPC, in its present form, is violative of the right to dignity and the right to privacy under Article 21 of the Constitution.

The expression “against the order of nature” is ambiguous and has neither been defined in Section 377 IPC nor any other provision of the IPC in the definition chapter of IPC. The interpretations given to the expression by various judicial pronouncements include all sexual acts which have no purpose of procreation. The court held that sexual intercourse which is not performed for procreation cannot be considered as “against the order of nature”. Every person has the right to choice of partner with the ability to find fulfillment in sexual intimacy and right not to be subjected to discriminatory behaviour based on sexual orientation. All these rights are intrinsic to the constitutional protection of sexual orientation. The LGBTQ community is subject to equal protection of the law without any stigma.

Union of India was also directed to take all measures to ensure that this judgment is given wide publicity and is pitched to all parts of India through the public media, which includes television, radio, print and online media at regular intervals, and other programs to reduce and finally eliminate the stigma associated with LGBTQ community. This was an effort made by the court to remove the orthodox thinking of the people. Sensitization programs for government officers and police officials must be organized so that LGBTQ society is provided with equal treatment,

  Conclusion

The fight for the legalization of homosexuality was long. It took more than 15 years of fight in courts to realize that society needs to change. The concept of constitutional morality prevails over social morality.  Everyone irrespective of sexuality or gender has the right to freedom guaranteed by Article 21 of the Constitution of India. Some parts of the society favour the judgment of the Supreme Court, while other people are against the verdict. Decriminalization of Section 377 provides the LGBT community with the right to choose about sexual orientation and also provides the freedom of expression to them. Thus, the Supreme Court’s verdict of 2018 has also two impacts, both positive and negative impacts. The privacy of an individual must be maintained and judicial and legislative actions must not intrude in one’s private life. We need to work on developing a society with no discrimination and with freedom of expression to everyone.


[i] Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277

[ii] Ibid.

[iii] What is Section 377, Available at https://www.indiatoday.in/india/story/what-issection-377-1333115-2018-09-06 (last May 30, 2019).

[iv] Ibid.

[v] Section 377 of the IPC

[vi] Editorial, „What is Section 377, and why does it matter?‟ The Hindu, July 21, 2018, available at https://www.thehindu.com/news/national/what-issection-377-and-why-does-itmatter/article24483691.ece (last visited on May 30, 2019)

[vii] Ibid

[viii] Rajagopal, Krishnadas (7 September 2018). “SC decriminalizes homosexuality”. The Hindu – via www.thehindu.com.

[ix]  Pundir, Pallavi (6 September 2018). “I Am What I Am. Take Me as I Am”Vice News. Retrieved 8 September 2018.

[x] Civil Writ Petition No. 1784 of 1994

[xi] (2009) 160 DLT 277

[xii] Naz Foundation v. Govt. of NCT of Delhi (2009) 160 DLT 277

[xiii] Id., 10

[xiv] (2009) 160 DLT 277

[xv] Ibid., 105, 132

[xvi] Ibid

[xvii] CIVIL APPEAL 10972 OF 2013

[xviii] (2014) 1 SCC 1

[xix] (2014) 1 SCC 97

[xx] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 97, 54

[xxi] Ibid. 97 56.

[xxii] K.S. Puttaswamy v Union of India (2017) 10 SCC 641

[xxiii]  “India recognizes transgender people as the third gender”. The Guardian. 15 April 2014. Retrieved 15 April 2014.

 McCoy, Terrence (15 April 2014). “India now recognizes transgender citizens as ‘third gender'”Washington Post. Retrieved 15 April 2014.

 “Supreme Court recognizes transgenders as ‘third gender'”. Times of India. 15 April 2014. Retrieved 15 April 2014.

Mark E. Wojcik, Male. Female. Other. India Requires Legal Recognition of a Third Gender, 43:4 International Law News 1 (2014)(American Bar Association Section of International Law).

[xxiv] (2018) 1 SCC  791

[xxv] (2014) 5 SCC 438

[xxvi]  Ibid p. 156, para. 253(i)

[xxvii] (2017) 10 SCC 1

[xxviii] p. 165, para. 253(xvi)

[xxix] p. 224, para. 83

[xxx] p. 142

[xxxi] 2018 (5) SCALE 422  

[xxxii] (2018) 7 SCC 192  

[xxxiii] p. 72, para. 107

[xxxiv] p. 79, para. 121

[xxxv] p. 239, para. 78

[xxxvi] p. 328, para. 51

[xxxvii] p. 368, para. 90

[xxxviii] p. 270, para. 7

[xxxix] p. 455

[xl] p. 455

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