Constitutionality of Section 377 of IPC

Lovely Professional University. Punjab(INDIA)

Review Paper on Section377 of Indian Penal Code Constitutional law II (LAW-126) Submitted to – Madam Neeru Mittal BY-Shivam Singh (Reg: -11611419) (Section: -L1604/B31)

Index 1. Introduction

2. Statement of problem 3. Research methodology 3.1. Aim and objectives 3.2. Scope and Limitations of the paper 3.3. Method of writing 3.4. Hypothesis 3.5. Research Questions 4. Legal history 5. Global trends 6. Laws involved 7. Case analysis of Naz Foundation V. Gov. of NCT and others (WP(C) No.7455/2001) Date of decision: 2nd July, 2009 7.1. Judgement of the case 8. Law commission on Section 377 9. Conclusion 10. Bibliography

1. 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.   

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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.

 

2. Statement of Problems There are significantly many major problems which are discussed below: 1.Treatment of the rights of homosexual people, not just to engage in consensual sexual intercourse in private, but also to a life of dignity free from State discrimination and intrusion 2.Need to recognize and work for the betterment of LGBT (Lesbian, Gay, Bisexual, Transgender) section of the society. 3.The current family laws need to be modified in order to be incorporate with the LGBT section. 4.LGBT are considered as against the order of the nature under Section 377 of IPC. 5.Section 377 of IPC is violative of fundamental rights stated in 3rd part of the constitution.

 

3. Research Methodology

3.1.

Aim and Object of the Paper:

The aim and object of this research paper is to better understand the working and interpretation of Section 377 of the Indian Penal code and in doing so analyze the realities of the failure of this section over the years and the changes to be able to reconcile the legislative intent with the politicosocial reality. An attempt will be made by the researcher to evaluate whether or not the section 377 of IPC is violative of the part 3 of the constitution of India. The section 377 of IPC penalizes the so called unnatural carnal intercourse between consented individuals.

This report tends to hold the following objectives: 1.To test the validity of section 377 of IPC with respect to part 3 of the Indian Constitution. 2.To check whether the section of LGBT comes under the ambit of section 377 of IPC. 3.To check the jurisprudential basis of section 377 of IPC.

3.2.

Scope and Limitation of the Paper:

The scope of this paper extends to studying articles 14, 15, 19 & 21 with respect to section 377 of IPC and supporting legislations have evolved and the purposes it served. This paper gives a broad overview of the existence of LGBT in India, the role played by civil society, judiciary and the legislature to try and redress the problem as well as analyses the reasons for the failure or lack of political social and judicial will in order to work for the betterment of this sexual minority. The paper seeks to cull out defining characteristics and purposes behind the use of this section as a means of addressing the problem as well as a source of power within the hierarchical structure of political society .The limitations of the paper are that apart from the broad overview, the researcher has sought to narrow the scope by studying a few key instances, in order to give a more comprehensive feel of the practical reality of section 377, by studying a few key cases which analyze the

loopholes and the reality of discrimination with LGBT people in its various manifest forms in India.

3.3.

Method of Writing:

This research paper has been written using both descriptive and analytical methods. However, the approach adopted in using both these methods has been to critique the information utilized to the extent possible. The descriptive mode of writing has been adopted to discuss the intent of repealing section 377 in the Constitution and the analytical mode of writing has been employed in the analysis of the reasons and rationale behind the construction and legal and political interpretation and interplay while utilizing the said section and subsequent legislations.

3.4.

Hypothesis:

Section 377 is somewhat like a double-edged sword. While on one hand, it denies individuals an essential fundamental right, on the other, some of its clauses are crucial to the society and, hence, cannot be ignored. With the raging debate to scrap Section 377, it has become all the more important to review it carefully. Perhaps then we might realize that the need of the hour is to amend Section 377 as opposed to entirely repealing it. Whether the section 377 of IPC is constitutionally void as when it comes to the fundamental human rights it is clearly violative of the articles 14, 15, 19 & 21 of the Indian constitution as when it comes to penalize the carnal intercourse which is done in private with the consent of both the individuals. As it has to be decided that what is of more importance, the base of the constitution which is the fundamental rights or the section 377 of IPC. Clearly, we can see that section 377 is invalid as said according to article 13 of Indian constitution.

3.5.

Researchable Questions.

The following questions have been raised by the researcher during the course of this research paper: 1. How an act done in private between two consenting adults can be proved without hindering right to privacy? 2. Is the act done in private between two consenting adults is the matter of state as doing the act discretion of the person. Is the interference of state is violative of Article 21?

3. What is the jurisprudential source of this section?

4. Legal history 

As part of Queen Mary I’s restoration of Roman Catholicism in 1553, the Parliament of England expelled the offence of “buggery”, and returned it to the control of Christian religious law. Mary was, however, succeeded in 1558 by her Protestant half-sister Queen Elizabeth I. In 1562, Parliament revived the felony of “buggery” in English criminal law

“Sithence which Repeal so had and made [in 1553], divers evil-disposed Persons have been the bolder to commit the said most horrible and detestable Vice   of Buggery ... to the high Displeasure of Almighty God ... Be it enacted ... That the said Statute [of 1533] ... shall ... be revived, and from thenceforth shall stand, remain and be in full Force, Strength and Effect for ever, ... as the same Statute was at the Day of the Death of the said late King Henry the Eighth ...” 

It was this Act of 1562, making “buggery” a criminal offence punishable by death, that was exported, directly or indirectly, to as many parts of the British Empire as possible. In 1828, the 1562 offence was replaced, for England and for all parts of India in which British criminal courts had jurisdiction, by a new version, with identical wording and an identical death penalty for England and India:

“every Person convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall suffer Death as a Felon”. 4. Whether or not any man in India was actually convicted of “buggery” and sentenced to death, between 1828 and the entry into force of the Indian Penal Code on January 1, 1862, this criminal offence applied, at least in theory, to: “all Persons and all Places ... over whom or which the Criminal Jurisdiction of any of His Majesty’s Courts of Justice erected or to be erected within the British Territories under the Government of the United Company of Merchants of England trading to the East Indies does or shall hereafter extend”.

5. Global Trends 5. The first decision of an international human rights tribunal requiring decriminalization was delivered 30 years ago. In Dudgeon v., United Kingdom (October 22, 1981),82 the European Court of Human Rights ruled that the unamended offences of “buggery” and “gross indecency”, found in section 61 of the Offences against the Person Act, 1861 and section 11 of the Criminal Law Amendment Act 1885 (both Acts still applied in Northern Ireland), violated the right to respect for private life in Art. 8 of the European Convention on Human Rights. The Court made it clear that no criminal prosecution or conviction was necessary to give Jeffrey Dudgeon standing to challenge these criminal offences: “the maintenance in force of the impugned legislation constitutes a continuing interference with the applicant’s right to respect for his private life (which includes his sexual life) within the meaning of Art. 8(1) ... the very existence of this legislation continuously and directly affects his private life ... : either he respects the law and refrains from engaging – even in private with consenting male partners - in prohibited sexual acts to which he is disposed by reason of his homosexual tendencies, or he commits such acts and thereby becomes liable to criminal prosecution.”

6. 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.

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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

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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 (2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence (3) Nothing in sub clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub clause (4) Nothing in sub clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or

public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub clause (5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe (6) Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub clause, and, in particular, nothing in the said sub clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to, (I) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise 

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

7. Case analysis of Naz Foundation V. Gov. of NCT and others WP(C) No.7455/2001 decision : 2nd July, 2009

Date of

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.”

7.1. Judgement 132. 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 172 nd 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. CHIEF JUSTICE S. MURALIDHAR, J JULY 2, 2009

Naz Foundation V. Gov. of NCT and others WP(C) No.7455/2001 decision: 2nd July, 2009

Date of

8. Law commission against section 377 - Law commission of India 172 report on review of rape laws. (D.O.No.6(3) (36)/2000_LC(LS) March 25, 2000)

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Clause 6 of the 172 report of law commission of India. It can be clearly seen that there was a significant opposition of section 377 of IPC.

“After detailed discussions with these organizations, the Commission has recommended changes for widening the scope of the offence in section 375 and to make it gender neutral. Various other changes have been recommended in sections 376, 376A to 376D. We have also recommended insertion of a new section 376F dealing with unlawful sexual contact, deletion of section 377 of the IPC and enhancement of punishment in section 509 of the IPC. In order to plug the loopholes in procedural provisions, we have also recommended various changes in the Code of Criminal Procedure, 1973 and in the Evidence Act, 1872.”

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Under the same report in the clause 3 and 4 of introduction part

(2) Is it not wrong to classify the penetrative abuse of a child below the age of 12 as unnatural offence under section 377 IPC or as outraging the modesty of a woman under section 354, depending upon the `type’ penetration ignoring the `impact' on such child.

(3) Is it not wrong to continue to treat non-consensual penetration upon such a child as offence under section 377 IPC on par with certain forms of consensual penetration (e.g. consensual homosexual sex) where consenting party can be held liable as an abettor or otherwise.

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In the chapter 2 under subheading 2.2 there was a significant proposal to repeal this section 2.2. Draft of the Law Commission's proposals.On consideration of the `precise issues' submitted by the petitioner and in the light of the order of the Hon'ble Court and also taking into account the laws in force in certain western countries on this subject, the Law Commission prepared a draft (Annexure-B) containing the proposed new sections, namely, sections 375, 376, 376A, 376B, 376C, 376D in substitution of the existing sections375 to 376D and also suggested a new section, section376E. The purport of these

new sections is to substitute the offence of `rape' under section 375 with the offence of `sexual assault' by including all kinds of penetration…….Besides the above, section 377 is proposed to be deleted as unnecessary in the light of the preceding provisions. Section 509 of IPC is also sought to be amended providing higher punishment where the offence set out in the said section is committed with sexual intent.

9.Conclusion • Section 377 is in violation of Right to Privacy and Right to Life as you can't restrict the freedom of consenting people as far as their freedom is not hurting anyone else. • This section is just an instrument of exploitation and it is almost not possible to decide what type of sex do two consenting individuals are having in private. It has been noted that section 377 is mostly used to harass sex workers and AIDS/HIV affected people. • British's, who had imposed this inhuman provision on people of India, has removed this kind of provision from their law. • There have been many positive developments in favor of Lesbian, Gay, Bisexual and Transgender (LGBT) community on the international front. In May 2015, Ireland legalized same-sex marriage. The country which had decriminalized homosexuality in 1993 became the first country to allow same sex marriage a national level by popular vote. • In June 2015, the US Supreme Court ruled that same sex marriages were legal. Near home, Nepal legalized homosexuality in 2007 and the new Constitution of the country too gives many rights to the LGBT community. • France, UK, Canada, United States, Australia and Brazil have decriminalized homosexuality. Other countries like Belgium, Brazil, Canada, France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain, Sweden and Uruguay allow either same sex marriage or a civil union. Also the law commission of India significantly suggested to repeal the section 377 in the light of fundamental rights and said that it’s work was only to avoid child abuse , rather not to criminalize consenting adult individuals. Thus, consensual sexual activities between two adults of the same sex should not be regulated by a law as it violates their Fundamental Rights and a person’s choice of sexual accomplice is no business of the State to regulate on.

Section 377 is abused to brutalize the persons belonging to the gay community. Popular morality, as distinct from constitutional morality as derived from constitutional values, is based on shifting notions of right and wrong and as of today, a large chunk of elite population is in favor of the LGBT rights and hence, this shows that the State is not even going by the popular morality but by its own morality and if there is any type of morality that can pass the test of compelling state interest, it should be constitutional morality.

11. 1. 2. 3. 4. 5.

Bibliography Law commission 172 report. Wikipedia Manupatra indiakanoon.com SAME-SEX LOVE AND INDIAN PENAL CODE Section 377:AN IMPORTANT HUMAN RIGHTS ISSUE FOR INDIA -by Robert Wintemute 6. Gay Rights in India Author(s): Vimal Balasubrahmanyan Source: Economic and Political Weekly, Vol. 31, No. 5 (Feb. 3, 1996), pp. 257-258 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/4403740 Accessed: 25-03-2017 22:40 UTC 7. A Ruling against Discrimination Source: Economic and Political Weekly, Vol. 44, No. 28 (Jul. 11 - 17, 2009), p. 5 Published by: Economic and Political Weekly Stable URL: http://www.jstor.org/stable/40279247 Accessed: 25-03-2017 22:40 UTC 8. The Constitution of India 1949 9. Indian Penal Code 1860 10. All India Reporter (AIR)