Various Issues Around section 377 IPC

Section 377 of the Indian penal code defines unnatural offences. The section reads as follows:  “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished”.

This section is there in IPC since it was introduced by Lord Macaulay in 1860. One of the grounds of introduction of the section was homosexuality or acts against the order of nature are condemned by the bible.

It makes it clear from reading the above that it does not make any difference between consensual and non-consensual sexual activities. The maximum punishment is imprisonment for life.

The section has been in news as voices being raised against its being in violation of human rights, harassment and violence against LGBT community. The LGBT community and a part of society wants this section to be repealed. The issue has been sub-judice several times and in this context, following two judgments are worth note:

Naz Foundation (India) Trust vs. 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. So, in 2001, the foundation filed a writ petition in the 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; equality under Article 14 and Article 15 which says that there shall be no discrimination on basis of sex.

This writ petition was supported by NACO (National AIDS Control Organization) Health Ministry, as the section 377 has proved to counterproductive in prevention of HIV.

However, High Court dismissed the writ petition on the ground that the petitioner had no locus standi in the matter. But then, the Supreme Court on civil appeal ordered high court to hear the case on basis of merits.

Finally in 2009, High Court passed the landmark judgment declaring the Section 377 as unconstitutional on grounds of violation of fundamental rights under article 14, 15 and 21 of the constitution. In that judgment, the Court Observed that:

• Section 377 violates article 14 which states that every citizen has equal opportunity of life and is equal before law.
• 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.
• Right to life under Article 21 includes the right to health and Section 377 is an impediment to public health because it hinders HIV-prevention efforts.
• 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.

In summary, the High Court stressed the importance of upholding the values of equality, tolerance and inclusiveness in Indian society.

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

The high court decision which decriminalized the unnatural sex was challenged in the Supreme Court. The Supreme Court overturned the High Court verdict and recriminalized homosexuality. While upholding the section, Supreme Court Observed that:

• Section 377 is not volatile 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.”
• LGBT community constitutes only a “minuscule fraction” of the country’s population. Further, hardly 200 persons have been prosecuted in 150 years of Section 377.
• The argument that the Section 377 is misused by the police to blackmail, harass and torture homosexuals is not a valid ground to hold the section unconstitutional.

Further, the Supreme Court suggested that the section should be clarified with suitable amendments but not repealed just by saying that it 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.

We note here that recently, congress MP Shashi Thraoor had introduced a Private members bill in Lok Sabha to decriminalize homosexuality. This bill ddecriminalizes sexual intercourse in private between consenting adults, irrespective of their sexuality or gender. It restricts the applicability of the section to non-consensual intercourse. The bill mentions age of consent to be of 18 years and  drops the phrase “against the order of nature” from the text of the current section. The introduction of the bill was voted down in Lok Sabha.

Arguments can be in favor of or against the Section 377. Currently, the ball is in court of parliament to repeal or amend the law.

Politicos are reluctant to repeal the law, because then, they would face backlash from their conservative vote banks. Certainly, the law is regressive and archaic and needs to be either repealed or amended as it denies equality right and right to health to lakhs of LGBT people.  The legislative 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. Further, the justice 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.

But the question is- Should the Government Repeal the law?