Article 377 , LGBT rights

Section 377 of the Indian penal code defines unnatural offences. It is rooted in the legacies of British colonial states where in it was introduced by Lord Macaulay in 1860 as a part of IPC. One of the grounds of introduction of the section was homosexuality or acts against the order of nature are condemned by the bible.

According to the section “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished”. The maximum punishment is imprisonment for life. More importantly the sectional has not made any distinction between the consensual acts and non consensual acts.

The section further explains that penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The section has been in news on account of violation of basic human rights, harassment and violence among the LGBT community. This has led to protests demanding the repeal of the section.

Supreme Court Judgements

Case: Naz Foundation (India) Trust v. Government of NCT of Delhi (2001)

Naz foundation is a Delhi based NGO that works in the field of HIV prevention among homosexuals. Working in this field the foundation realized that section 377 acted as a biggest impediment for LGBT community in having access to health services because of fear of prosecution under the law. This makes the homosexual population more vulnerable.

Therefore in 2001 the foundation filed a writ petition Delhi high court challenging the constitutionality of section on grounds of violation right to privacy and health under article 21, freedom of expression under article 19 and equality under article 14.Further they submitted violation of article 15 which says there will be no discrimination on basis of sex .

Even the Ministry of Health and Family Welfare (in conjunction with the National Aids Control Organization) supported the petition of Naz foundation on grounds that existence of section 377 proves counterproductive to prevention of HIV AIDS.

But the case was dismissed by the HC saying that the petitioner has no locus standi in the matter. However the Supreme Court on civil appeal ordered high court to hear the case on basis of merits.

Finally in 2009 the court passed the landmark judgment upholding Section 377 unconstitutional on grounds of violation of fundamental rights under article 14, 15 and 21 of the constitution.

First the court stated that section 377 violates article 14 which states that every citizen has equal opportunity of life and is equal before law.

Second Court said that the word sex under article 15 should not be narrowly interpreted. The word sex apart from biological sex also includes the sexual orientation of the individual, so any discrimination on basis of sexual orientation is not permitted under article 15.

The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts. Above all the by criminalizing consensual sexual acts between adults in private, Section 377 grossly violates the right to privacy and liberty guaranteed by Article 21 of the Constitution.

Summing up its judgment, the High Court stressed the importance of upholding the values of equality, tolerance and inclusiveness in Indian society.

Case: Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust 2013

In this case the SC overturned the High Court verdict and recriminalized homosexuality.

While upholding the constitutional validity of the section SC said it is not violative of article 14 as it made a distinction between persons who “indulge in carnal intercourse in the ordinary course” and persons who “indulge in carnal intercourse against the order of nature.” It held that these are different classes of people and that this is a valid classification under Article 14 of the Constitution.

Most shockingly, the Court said that the LGBT community constitutes only a “minuscule fraction” of the country’s population. Court maintained that hardly 200 persons have been prosecuted in 150 years of Section 377. Further the court said that the argument that Section 377 is misused by the police to blackmail, harass and torturehomosexuals is not a valid ground to hold the section unconstitutional.

The solution, it said, was to clarify the law with suitable legislative amendments, rather than say the law violated the right to freedom and equality. And this is what it asked Parliament to do since it couldn’t amend a law.

Currently the judgment is itself under challenge and pending hearing in open court under curative petition.

Various Issues

No Difference between Consensual And Non Consensual Acts

The section mentions even ‘voluntary’ acts as punishable under section 377.Therefore the  section does not make any difference between male adult seducers, male who commit rape on other male and two males having consensual sex. The declaration of all homosexual acts criminal, whether consensual or non consensual, is nothing but considering all homosexuals as sexual pervert, thus, demeaning their dignity. It does not take into account the sexual preferences of the individuals.

Also there is no basis of interference by the state in private sphere of the individual. It tantamount to moral policing. Critics against the law raise a question; shouldn’t the State allow consenting adults to make their own sexual choices. Everybody has the right to control their sexuality and bodily integrity. Moreover, right to privacy is one of the most important right of an individual. If a person cannot enjoy his privacy then it hampers his right to dignified life  assured by our constitution under article 21.

Further criminalising the consensual sex between homosexuals tantamount to reinforcing biblical beliefs(basis of enactment of this section) in todays era. While English law has moved on, enacting, in 1967, the Sexual Offences Act which decriminalised homosexual acts between consenting adults, Indian law continues in its outdated form. Therefore time has come that we should learn from international experience.

Ambiguous Language Of The Section

The section 377 lacks precise definition. The term ‘carnal intercourse against the order of the nature’ is not defined in the IPC. The only criterion being ‘penetration’ against the order of nature. Consequently it has been subjected to various judicial interpretations. Initially it covered only anal sex but gradually its ambit went on to increase to include oral sex and still later it included any form of non vaginal penile penetration. For eg: between thighs and folded palms.

The spirit of the section is to punish those individuals who have intercourse with the individual of same sex so that pervert actions could be keep in check. But even many heterosexual couples involves in anal and oral sex, which comes under the definition of this section. So the heterosexual couples can also face criminal proceedings. Therefore the section is not just directed at homosexuals.

Thus the section 377 is vague and ambiguous in its language which raises conflicts between the spirit of the section and its literary wording.

How Section 377 Violates Fundamental Rights?

Although the HC has held in NAZ Foundation Case that section 377 is violative of Articles 14, 15 and 21 but this verdict has been overturned by the SC.

Let us analyze how this section violates various fundamental rights.

Article 14 ensures right to equality as well as equal protection of law. But the section is not clearly defined as discussed above leading to vagueness and uncertainty. And the Supreme court has held that a statute is void for ambiguity if its prohibitions are not clearly defined. The rationale is that, such vagueness will lead to arbitrary application and the SC has clearly said in its various judgements that arbitrariness is always anti thesis of equality.

Further, the section 377 creates unreasonable classification and distinction between persons who “indulge in carnal intercourse in the ordinary course of nature” and persons who “indulge in carnal intercourse against the order of nature.” The basis of this classification is the procreative nature of the act.

However this is arbitrary classification as in era of technology it is very important to note that even the gay couple can have procreation with the IVF technology. So the classification is unreasonable. Moreover the section does not distinguish between public and private acts, or between consensual and non-consensual acts, therefore does not take into account relevant factors such as age or consent, thus, violative of article 14.

Further Article 15 (1) of the Indian Constitution provides that, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” In present scenario the term “Sex” has a wider meaning and apart from biological sex it includes sexual orientation as well. The effect of section 377 is that it disproportionately impacts homosexuals on the basis of their sexual orientation, thus, violative of article 15.

Article 21 –right to life is most fundamental to existence. The SC has said that the word life does not mean mere animal existence but a life where an individual could exercise his liberty to live a dignified life. In Bandhua Mukti Morcha V. Union of India the honorable court held:
“There are minimum human requirements which exist in order to enable a person to live with human dignity, and no state has right to take away action which will deprive a person of the enjoyment of this basic essential”.

Privacy, health and a dignified life are basic essentials of a person’s life. Obstructing an individual’s sexual orientation is infringement of his right to privacy thereby affecting his right to dignified life. Further criminalization of sec.377 has also impeded access to health services of LGBT community.

Above all the section violates the basic features of the constitution i.e. justice, liberty and equality.

Should The Government Repeal The Law

Decriminalizing private and consensual adult sexual behavior has led to a debate in the country. Some demanding complete repeal of the section and others arguing for retaining the section with certain amendments.

Proponents of the section say that homosexuality is against nature and is highly reprehensible. Also it is not conducive to the overall health of the individuals. In addition to this it is demeaning the sacred institution of marriage. Homosexual marriage cannot maintain the moral and conducive atmosphere for the bringing of the children. Moreover in a heterosexual marriage the requirements of the nature are satisfied. Some even went to the extent of calling it a mental disorder. Even India’s culture does not support such acts. So they are of the view that to safeguard the morality of the society and strengthen the ethos of the Indian tradition the govt should not repeal the section. Certain amendments can be brought in the section.

On the other hand individuals’ favouring the repeal of the section says that No doubt marriage is a sacred institution and therefore it cannot be limited to opposite sex couples. It’s more about love and togetherness which can also be shared by couples of same sex. Infract limiting this institution to sex and procreation will demean the concept of marriage.

Further the argument that homosexuality is a mental disorder is disputed by various health organizations. The American Psychiatric Association removed homosexuality from its list of mental disorders back in 1973 and the World Health Organization followed suit in 1990. Following the Delhi High Court judgment decriminalising homosexuality in 2009, the Indian Journal of Psychiatry — the official publication of the Indian Psychiatric Society acknowledged homosexuality as a natural variant of human sexuality.

Even in Indian art of khujarao temples we witness various postures depicting homosexuality. Therefore it cannot be completely said that Indian culture does not support homosexuality.

Apart from this Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces. Moreover the LGBT community cannot even approach a police station if there is any case of sexual assault and rape on them. Criminalisation has also led to denial of health facilities to homosexuals thus increasing the incidence of HIV AIDS among them. Therefore we have to realize that criminalising their sexual expression and identity had a severe impact on their dignity and self-worth.

Often child abuse is given as a justification for retaining section 377.Although the section has been somewhat successful in penalizing child abuse and complementing the lacunas of the rape law. But this does not negate the clear threat the law presents to the sexual minorities of India as discussed above. Therefore the need of the hour is to formulate an independent law to deal with the child sex abuse and repeal section 377.

One of the changes proposed by the LGBT community is amendment in Section 375 of the IPC, which specifies acts of sexual assault committed by men against women i.e rape. So it is not victim neutral. If the section replaces the word ‘man’ with ‘any individual’ i.e the victim could be of any gender then it would pave the way for Section 377 to be repealed.

We need to understand that society gets strengthened only when it gives space to every individual to exercise their freedom and choice. But homosexuals have been denied their space in the society. So there is a urgent need to repeal the law.

Current Developments

In a significant development the congress member Shashi Thraoor introduced Private members bill in lok sabha to decriminalize homosexuality. Various provisions of the draft bill are:

• Decriminalize sexual intercourse in private between consenting adults, irrespective of their sexuality or gender.
• It restricts the applicability of the section to non-consensual intercourse.
• Age of consent being above 18 years of age.
• The bill drops the phrase “against the order of nature” from the text of the current section.

But the Lok Sabha voted against introduction of a private member’s bill. Therefore the bill could not see the light of the day.

Comment

After the Suresh Kaushal judgment the SC has put the ball in the court of parliament to repeal or amend the law. However the parliament seemed to be withdrawing from its responsibility when it did not even allowed the introduction of the private members bill.

It is high time that the representatives of people should understand that the section is affecting the basic human rights of millions of people. Denial of human rights and self-identity accompanied by harassment without legal recourse is severe mental and emotional trauma, and a negation of all that is promised by the Constitution. Therefore the state institutions should not shy away from performing their constitutional mandate of maintaining justice and liberty of the individuals. Otherwise the human cost of unjust laws keeps rising.

Conclusion

One has to understand that the fight cannot be achieved only through legal amendments. It should be accompanied by awareness campaigns to educate parents, teachers and friends to adopt a healthy and supportive attitude towards homosexuals. What is needed is the broad consensual acceptance of gay lifestyle being as normal as any other lifestyle. Although the road ahead is not easy.