Section 377 of the Indian Penal Code

S ection 377 of the Indian Penal Code From Wikipedia, the free encyclopedia

Jump to: navigation, search Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861,[1] introduced during the British rule of India, criminalises sexual activities "against the order of nature", including homosexual acts. The section was declared unconstitutional with respect to sex between consenting adults by the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

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1 History 2 Public perception o 2.1 Support o 2.2 Opposition and criticism 3 Legal battle o 3.1 2013 judgement 4 References 5 External links

History[edit] 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 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 offense described in this section.[2][3] The ambit of Section 377, which was devised to criminalize and prevent homosexual sex[citation needed] extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.

Public perception[edit] Main article: Homosexuality in India

Support[edit]

In 2008 Additional Solicitor General PP Malhotra said: Homosexuality is a social vice and the state has the power to contain it. [Decriminalising homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." A view similarly shared by the Home Ministry.[4] The 11 December 2013 judgement of the Supreme Court, upholding Section 377 was met with support from religious leaders. The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each other’s religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment."[5] The article added that Baba Ramdev India's well-known yoga guru, after praying that journalists not "turn homosexual", stated he could cure homosexuality through yoga and called it "a bad addiction”. The Vishwa Hindu Parishad's vice-president Om Prakash Singhal said, “This is a right decision, we welcome it. Homosexuality is against Indian culture, against nature and against science. We are regressing, going back to when we were almost like animals. The SC had protected our culture.” The article states that Singhal further went to dismiss HIV/AIDS concerns within the LGBT community as, “It is understood that when you try to suppress one anomaly, there will be a break-out of a few more.” Maulana Madni of the Jamiat Ulema is stated in the article as echoing similar homophobia in stating that “Homosexuality is a crime according to scriptures and is unnatural. People cannot consider themselves to be exclusive of a society... In a society, a family is made up of a man and a woman, not a woman and a woman, or a man and a man. If these same sex couples adopt children, the child will grow up with a skewed version of a family. Society will disintegrate. If we are to look at countries in the West who have allowed same-sex marriages, you will find the mental tensions they suffer -+from.” Rabbi Ezekiel Issac Malekar, honorary secretary of the Judah Hyam Synagogue, in upholding the judgment was also quoted as saying “In Judaism, our scriptures do not permit homosexuality." Reverend Paul Swarup of the Cathedral Church of the Redemption in Delhi in stating his views on what he believes to be the unnaturalness of homosexuality, stated “Spiritually, human sexual relations are identified as those shared by a man and a woman. The Supreme Court’s view is an endorsement of our scriptures.”

Opposition and criticism[edit] Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India. However, Human Rights Watch argues that the law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, homosexuals, and other groups at risk of the disease.[6] The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities[7] and, in particular, transsexuals in India.[8] In 2006 it came under criticism from 100 Indian literary figures,[9] most prominently Vikram Seth. The law subsequently came in for criticism from several ministers, most prominently Anbumani Ramadoss[10] and Oscar Fernandes.[11] In 2008, a judge of the Bombay High Court also called for the scrapping of the law.[12]

Legal battle[edit]

The judgement of the High Court of Delhi of 2 July 2009 declared portions of section 377 unconstitutional w.r.t consensual sex among adults Main article: Naz Foundation v. Govt. of NCT of Delhi The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication Less than Gay: A Citizen's Report, spelled out the problems with 377 and asked for its repeal. A 1996 article in Economic and Political Weekly by Vimal Balasubrahmanyan titled 'Gay Rights In India' chronicles this early history. As the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults.[13] The Naz Foundation worked with a legal team from the Lawyers Collective to engage in court.[14] In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, had no locus standi in the matter. Since nobody had been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. Naz Foundation appealed to the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit.[15] Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.[16] In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position, with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of enforcement of Section 377 with respect to homosexuality.[17] On 7 November 2008, the seven-year-old petition finished hearings. The Indian Health Ministry supported this petition, while the Home Ministry opposed such a move.[18] On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated.[19] Eventually, in a historic judgement delivered on 2 Jul 2009, Delhi High Court overturned the 150 year old section,[20] legalising consensual homosexual activities between adults.[21] The

essence of the section goes against the fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law. The two judge bench went on to hold that:

“

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 recognising a role in society for everyone. Those perceived by the majority as "deviants' or 'different' are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.[22]

”

The court stated that the judgement would hold until Parliament chose to amend the law. However, the judgement keeps intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors.[20] A batch of appeals were filed with the Supreme Court, challenging the Delhi High Court judgment. On 27 March 2012, the Supreme Court reserved verdict on these.[23] After initially opposing the judgment, the Attorney General G. E. Vahanvati decided not to file any appeal against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian Penal Code] criminalises consensual sexual acts of adults in private [before it was struck down by the High Court] was imposed upon Indian society due to the moral views of the British rulers."[23]

2013 judgement[edit]

The judgement of the Supreme Court of India of 11 December 2013 did not find enough reason for portions of section 377 to be declared unconstitutional and overturned the Delhi High Court judgement On 11 December 2013, the Supreme Court of India ruled homosexuality to be a criminal offence setting aside the 2009 judgement given by the Delhi High Court. The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that the parliaments should debate and decide on the matter. A bench of justices G S Singhvi and S J Mukhopadhaya upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offence

An angry and desperate Indian Embassy in Washington DC put out a statement this evening that did not respond to any of the serious charges leveled against NYC Indian Consulate’s Deputy Consul General Devyani Khobragde by U.S. Attorney for the Southern District of New York Preet Bharara.

Devyani Khobragade was arrested in New York City Thursday morning and charged with Visa fraud and making false statements to the U.S. Embassy in India about wages to be paid to her maid.

The charges against Devyani are related to the A3 Visa application of her Indian maid Sangeeta Richard.

Devyani was released later in the evening, presumably with some restrictions.

India Silent on Charges It is very telling that the Indian Embassy’s statement had nothing to say about the serious charges leveled against Devyani by U.S. Attorney Preet Bharara. It’s very rare that an Indian diplomat or any diplomat for that matter gets arrested considering that diplomats have diplomatic immunity. In Devyani’s case, U.S. officials refused to acknowledge her diplomatic immunity in the alleged Visa fraud and false statements matter. Bharara did not mince words while announcing Devyani’s arrest on Thursday:

Foreign nationals brought to the United States to serve as domestic workers are entitled to the same protections against exploitation as those afforded to United States citizens. The false statements and fraud alleged to have occurred here were designed to circumvent those protections so that a visa would issue for a domestic worker who was promised far less than a fair wage. This type of fraud on the United States and exploitation of an individual will not be tolerated. Following Devyani’s arrest and subsequent release, the Indian Embassy in Washington DC issued a statement:

The Embassy of India in Washington DC had immediately conveyed its strong concern to the U.S. Government over the action taken against Dr Khobragade. The US side have been

urged to resolve the matter with due sensitivity, taking into account the existing Court case in India that has already been brought to their attention by the Government of India, and the Diplomatic status of the officer concerned.

India Smears Maid Although silent on the serious charges against Devyani, Indian Embassy personnel in Washington DC had no difficulty in tilting against Devyani’s maid in their response to the diplomat’s humiliating arrest on Thursday.

The folks at the Indian Embassy acknowledged that Devyani Khobragade had been arrested on the basis of allegations raised by her “former India-based domestic assistant Sangeeta Richard.”

But Indian embassy personnel conveniently forgot that Sangeeta Richard worked for Devyani Khobragade in New York City from late November 2012 through June 2013 and described her as “former India-based domestic assistant Sangeeta Richard.” Indian embassy officials are smearing the maid by charging that she had “been absconding since June this year” but had nothing to say about the alleged fraud committed against Sangeeta Richard by senior diplomat Devyani by not paying her the promised wages.

U.S. officials allege in court documents that although the maid was promised $4,500 per month she was paid less than Rs 30,000 rupees per month, or $3.31 per hour (way below the minimum wage in New York state).

It appears that either Devyani or the Indian government has been trying to muzzle the maid Sangeeta Richard by filing a case against her in an Indian court. Here’s what the Indian Embassy had to say on the court case against the maid Sangeeta Richard in India:

In this context the Delhi High Court had issued an-interim injunction in September to restrain Ms Richard from instituting any actions or proceedings against Dr Khobragade outside India on the terms or conditions of her employment.

The US Government had subsequently been requested to locate Ms Richard and facilitate the service of an arrest warrant, issued by the Metropolitan Magistrate of the South District Court in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code.

Whether Devyani Khobragade is guilty or innocent will ultimately be determined in a U.S. court of law.

But the Indian Embassy in Washington DC appears to be in a clumsy, desperate damage control mode.

By the way, the Devyani Khobragade arrest is the third instance in the last three years involving NYC Indian Consulate officials and their Indian maids.