Author: Kunal Khare

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SECTION 377, IPC 1860

Section 377 in The 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 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.

Ingredients of S.377-

1. The accused had carnal intercourse with a man, woman or animal.
2. Such intercourse was against the order of nature.
3. The accused did the act voluntarily.
4. There was penetration.

BACKGROUND

The Delhi High Court in Naz Foundation v. Government of NCT, declared that S.377 insofar as it criminalizes consensual sexual acts of adults in private, is violative of articles 21,14 and 15 of the Constitution. The court also said that the provision of section 377 will continue to govern non – consensual penile non – vaginal sex and penile non – vaginal sex involving minors.

In Suresh Kumar Koushal v. Naz Foundation, apex court held that section 377, IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court in the aforesaid case is legally unsustainable.

FACTS

In January 2018, a bench headed by Chief Justice Misra had agreed to consider the implication of the privacy judgement of August 2017 and take another look at the constitutional validity of Section 377, in response to a plea by representatives of the LGBT community, including Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur. [1]

               

Sunail Mehra & Navtej Singh Source: The Guardian        Aman Nath Source: India Mart

     

Ayesha Kaur Source: DNA                                                Ritu Dalmia Source: Condé Nast Traveller

LEGAL ISSUES

1. Whether the law laid down in Suresh Koushal case is correct or not?
2. Whether criminalization of ‘consensual acts of adults in private’ falling under S.377 of IPC is constitutionally valid or not?

PLAINTIFFS’ CONTENTION

1. The plaintiffs contended that S.377 is a pre-constitutional law. Being a pre-constitutional law, there is no question of constitutionality. These laws were made by the body which was not elected by people; these were made by people of colonial society. So, at the time of making there was no constitution in force, so there is nothing with which its constitutionality can be tested.
2. RIGHT TO EQUALITY- ARTICLE 14-
   • The Petitioners have further contended that Section 377 is violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature is neither defined in the Section nor in the Indian Penal Code or, for that matter, any other law.
   • Petitioners argued that there is no intelligible differentia between carnal intercourse against the order of nature and carnal intercourse within the course of nature i.e. natural and unnatural sex. The classification here is unreasonable and does not have a legitimate purpose, as there is no rational nexus between the purpose of legislation and classification.
3. PROHIBITION ON DISCRIMINATION BASED ON SEX- ARTICLE 15-
   • Section 377 violates Article 15 of the Constitution since there is discrimination inherent in it based on the sex of a person’s sexual partner. Under IPC, there is a clear cut discrimination based on sex of a person’s sexual partner, as a person can be prosecuted if he engages in sexual relations with an opposite-sex partner without her consent whereas if same-sex partners are involved in same acts with consent, then these acts are criminalized. Thus, S.377 is also violative of Article 15 of the Constitution.
   • Art.15 prohibits sex discrimination; discrimination on grounds of sex is premised upon stereotypes about appropriate gender role and binary between men and women. The stereotype about gender roles constitutes the basis of the criminality of same-sex relations. S.377 IPC penalizes particular behaviour and its effect is therefore disproportionately imposed upon the LGBT community and therefore, it indirectly discriminates on grounds of sexual relations. Here, fundamental right to choose a partner is denied and the petitioners in the case are urging that protections to LGBT relationships should be given.
4. RIGHT TO FREEDOM OF SPEECH AND EXPRESSION- ARTICLE 19(1) (a)-
   • Section 377 has a chilling effect on Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of expression including that of LGBT persons to express their sexual identity and orientation, through speech, choice of romantic/sexual partner, expression of romantic/sexual desire, acknowledgment of relationships or any other means and that Section 377 constitutes an unreasonable exception and is thereby not covered Under Article 19(2) of the Constitution. [2] Under Article 19(1) (a) an individual can exercise his right to expression of his/her self-identified gender which can be expressed through words, action, behaviour or any other form.
   • Heterosexual couples are allowed to express their sexual identity publicly but same-sex couples are penalized if they do the same. LGBT community is unable to express themselves openly in society as they fear persecution because of their sexual orientation.
5. RIGHT TO FORM ASSOCIATIONS OR UNIONS- ARTICLE 19(1) (c)- Section 377 violates the right of LGBT persons under 19(1) (c) and denies them the right to form an association. Such persons are hesitant to form personal or professional associations. For instance, companies that promote the interests of the minority communities, LGBT persons fear from being a part of such corporations which provide benefits to sexual minorities. They fear that the state might take an action against them and also due to social stigma. Also LGBT peer support groups are criminalized under S.377.
6. RIGHT TO PROTECTION OF LIFE AND PERSONAL LIBERTY- ARTICLE 21-
   • Right to reputation is an implied right of every individual under the right to protection of life and personal liberty. Right of reputation is an element of personal security and is protected and guaranteed by the Constitution, and with s.377 still in force, this right of theirs is violated. By keeping S.377 in force, LGBT persons are deprived of their right to reputation. Supreme Court in Puttaswamy case upheld that protection of privacy is important and sexual orientation is embedded in it along with the right to life and dignity. Protection of sexual orientation is of utter importance and an individual has the right to choose his partner and this right can also be related to an individual’s right to dignity, liberty and autonomy. S.377 criminalizes LGBT’s individual identity and thus violates A.21 of the Constitution.
   • Right to have same-sex relationships is found under the ambit of right to autonomy of a free individual, it, therefore, must capture right of the persons of community to navigate public places on their own terms from state interference. Presence of S.377 of IPC stigmatizes the LGBT community and their lives and prevents them from being a part of society to a certain extent.
7. RIGHT TO SHELTER-ARTICLE 21- Supreme Court said that an individual has right to live with human dignity and the basic adequate necessities that go along with it, such as nutrition, shelter and clothing. LGBT persons feel insecure in living in normal society as they think that it is not safe and suitable for them and generally seek the assistance of Gay Housing Assistance Resources. Members of this community are in need of immediate care and protection of the state.
8. RIGHT TO HEALTH-ARTICLE 21-
   • Supreme Court mentions that right to health is included dunder A.21 of the Constitution. S.377 violates the right to health of LGBT persons as generally they do not tend to go to the hospitals if they have some sexual disease. Due to fear of prosecution and persecution, they do not reveal their sexual identities even to the doctors and thus try to refrain from going to the hospitals or availing any medical service on the very first place.
   • Keeping various statistics in mind, HIV prevalence among men who generally have sex with men and transgender persons is higher than that of general i.e. heterosexual people. S.377 criminalizes health workers who provide giving condoms to gay people. Thus, indirectly increasing the risk of HIV among LGBT persons.
9. In the case Suresh Kumar Koushal v. Naz Foundation case where the Supreme Court upheld the S.377 of IPC on the basis that “a minuscule fraction of the country’s population” are LGBT persons. Petitioners are also contending that the rights of the people are not determined on the percentage or fraction of people but on the real scrutiny that the right exists or not. And also the majority perception or view of the population cannot be the driving factor for declaring a provision unconstitutional or constitutional.

RESPONDENT’S CONTENTION

1. The respondent argued that the State has the power to decide and determine a class for the purpose of the legislation, such as the LGBT community in the present scenario is for S.377. S.377 is a mere offence and the power that it will apply to who is vested within the state. Thus, this is reasonable classification and A.14 here is not violated.
2. State also contended that under A.15 of the constitution, prohibition is on discrimination based on grounds of religion, race, caste, sex, place of birth only; sexual orientation is not included in it and is wholly a new word to our constitution. So, it cannot be used for testing the constitutional validity of a provision or legislation. Thus, under any sense A.15 is not violated by S.377 of IPC.
3. People who are involved in unnatural sexual acts are more susceptible and vulnerable to contracting with AIDS and other sexual diseases. Also, the percentage of homosexual getting AIDS is more than that in heterosexuals. Thus, provision punishing them for indulging in unnatural sexual acts is right and right to privacy should not be extended in order to enable LGBT persons to get engaged in unnatural sexual acts and in turn contact AIDS.
4. If Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.[3]
5. If Sec 377 is declared unconstitutional and consenting acts between two same-sex adults is not more prohibited, then a married woman will be rendered remediless against her bisexual husband who is indulging in sexual acts with his consenting male partner.
6. The state considered that carnal intercourse against the order of nature is injurious and offensive and puts life, health and security of the community in danger, thus it is state’s duty to put reasonable restriction to prohibit such human behaviour by means of keeping legislation like S.377 in force. This type of behaviour is not good for the growth of a civilized society and thus prohibition against carnal intercourse as defined in S.377 does not violate any fundamental rights of a person.
7. An intervenor in the case argued that if a male s treated as male, a female is treated as female and a transgender is treated as transgender then it does not amount to discrimination and it is all in state’s power to put reasonable restriction to forbid such aberrant behaviour by means of S. 377 or any other legislation.

JUDGEMENT

A five-judge bench comprising Chief Justice of India Dipak Misra and justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra had commenced the hearing on a batch of petitions challenging the constitutional validity of Section 377 on 10 July. The bench unanimously decriminalized S.377 of IPC and said it was in clear violation of the right to equality and right to live with dignity. Four separate but concurring judgments were given. Chief justice Dipak Misra gave the judgement which was supported by Justice A.M. Khanwilkar and other concurring judgements were given by rest of the three judges.

SC said that discrimination on the basis of intrinsic/core trait is ruled out by the Constitution’s vision of equality, ispo facto it violates A-14. The bench also talked about constitutional morality and transformative constitutionalism. Court said constitutional morality can override majority/public morality. Concept of equality should be interpreted in different ways. Although, LGBT are in minority but keeping S.377 in force causes hostile discrimination against this community and clearly, A-14 prohibits hostile discrimination.

Judges are determined in striking off some parts of Sec 377 of IPC, says that sexual orientation is an important and innate facet of right to privacy and every individual inclusive of LGBT persons have right to express their choices in terms of sexual inclination without any fear of persecution and prosecution and their choices should be respected by the society as well. Consensual acts defined in this section among two adults do not have any harmful effect on children or women. This discrimination and unequal treatment of the LGBT community as a separate class of citizens is unconstitutional and is being violative of Article 14 of the constitution. Sec 377, as it makes carnal intercourse between consenting adults in privacy a penal offence, amounts to unreasonable restriction on an individual’s freedom of choice as given in Article 19 of the constitution. It also violates the right to health as the people of the LGBT community refrain from taking any type of medical help and are vulnerable to any type of sexually transmitted disease.  Court also mentioned that these people are also entitled to equal citizenship and protection under the law without any discrimination.

Chandrachud, J. regarded the judgment in Suresh Koushal as a discordant note and opined that the reasons stated therein cannot be regarded as a valid constitutional basis for disregarding a claim based on privacy Under Article 21 of the Constitution.

Following principles were laid down by the court in this case:

1. There is a distinction between consensual and non-consensual sex among adults.

2. 377 fails to recognize that such sexual orientation is harmful to society.

3. 377 inflicts stigma on the LGBT community.

4. Modern psychiatric traits have shown that members of the LGBT community do not suffer from any mental disorder.

5. 377 inflicts life imprisonment which is disproportionate.

6. 377 is rooted with the belief that the sole aim of sexual orientation is procreation, which is not true.

7. Carnal intercourse against the order of nature, it is an open-ended and vague use as a penal offence.

CONCLUSION

Sec 377 of the IPC has been partially struck down. It still covers bestiality and non- consensual intercourse. The court struck down the provision as far as it applies to consenting adults, howver, the provision still presumably applies to consensual sexual intercourse among minors of the same gender. Under Section 375 of the IPC, as amended in 2013, even consensual sexual intercourse among heterosexual minors, if the girl is under 18 years of age, is considered to be rape.

Any person who has already been convicted or sentenced, these laws will not apply, however, if a person is going to file an appeal (within the period given in IPC) then priority will be given to the discretion of the court. If there is an FIR filed and trial of the accused is pending then these changes done in S.377 will apply.

The judgment in Suresh Kumar Koushal case is overruled, as they declared that all consensual sexual acts done by homosexual adults in private as legal.

[1] https://www.livemint.com/Politics/KSwVPGiEiDVLe7p4OX803O/Arguments-conclude-SC-reserves-verdict-on-Section-377.html?facet=amp

[2] AIR2018SC4321

[3] AIR2018SC4321

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About the Author: Kunal is a 2017-22 Batch student at National Law Institute University, Bhopal.

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