Section 377: A Run-down

Every person has a right to live his life the way he wants while making sure that he, in that process does not encroach on another individuals’ right. What is “freedom” then? Is it above your rights or parallel to it? The Indian Constitution defines freedom as a fundamental right in many senses. In simple terms, it means the power to not be enslaved. It is free will for each and every citizen. Freedom does not differentiate between different classes, castes, or gender. Freedom is equal for everyone. But what if the provider of the freedoms, our Constitution, takes away a freedom based on some constricted dualities?

This duality is seen in the Section 377. On one hand, the constitution grants fundamental rights like the right to life and personal liberty, which simply stands as the freedom to choose how to live your life in a meaningful, complete and dignified manner; and on the other hand it takes away this freedom by criminalizing a person’s right to choose whom he wishes to have sexual intercourse with in the Indian Penal Code.

Section 377’s roots lie in the religious morality of the time which abhorred non-procreative sex. Since its inception, Section 377 has remained unchanged. Even now, major religions in India believe homosexuality is immoral and support Section 377 as the protector of the Indian culture.

Lord Macaulay drafted the Indian Penal Code in 1861 during the British colonial regime in India. The Indian Penal Code contains Section 377 in the sub-chapter titled “Of Unnatural Offences” under the chapter “Of Offences Affecting the Human Body”. It reads as follows:

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 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.

Thorough reading shows that popular conception regarding this section is wrong. The term “against the order of nature” makes it such that any voluntary sexual activity not aiming at procreation falls under this section, which means that homosexual intercourse as well as oral and anal sex between a man and a woman is punishable under the current law. For the purposes of this section, we are not taking bestiality into consideration.

Homosexuality in India has been a taboo since time immemorial. Majorly, the LGBTQ community is pushed down with threats of punishment. The LGBTQ community, already bogged down by centuries of ridicule and hate, have one more thing to worry about-a jail term. According to Health Ministry statistics 2.5 million Indians have been recorded as homosexual. The real figure will be much higher. With such a substantial number of Indians belonging to LGBTQ community, Section 377 still exists. In the worlds’ largest democracy, an existence of such a section not only takes away the right to choose a sexual partner from the LGBT community but also from the transgender community. The newer generation, sensitive to the winds of change, is currently fighting this battle out in the Supreme Court of India.

CHRONOLOGICAL ORDER OF JUDICIAL HAPPENINGS IN CONTEXT OF SECTION 377:

  • 2001: Lawyers Collective, on behalf of NAZ Foundation (India) Trust, filed a Public Interest Litigation (PIL) in the Delhi High Court seeking to legalize consensual sex between two adults of same gender.
    September 2, 2004: PIL was dismissed.
  • November 3, 2004: Review petition was filed which was dismissed.
  • 2005: The LGBTQ community approached the Supreme Court against the dismissal by the Delhi High Court.
  • February 3, 2006: The Supreme Court ordered the High court to reconsider the matter on merits.
  • July 2006: The Ministry of Health and Family Welfare through National AIDS Control Organisation (NACO) contended that Section 377 acted as an impediment to HIV prevention efforts in the High Court.
  • November 7, 2008: Final hearings concluded. HC reserves its verdict.
  • July 2, 2009: Delhi High Court holds Section 377 to be violative of fundamental rights laid down in the Constitution insofar as it criminalized consensual sexual acts of adults in private.
  • March 27, 2012: SC reserves verdict on appeals filed against the Delhi High Court judgement.
  • December 11, 2013: SC sets aside the verdict of Delhi High Court.
  • December 21, 2013: Government files review petition to the Supreme Court.
  • January 28, 2014: Supreme Court dismisses the review petition.
  • February 2016: SC agrees to set a 5 judge “constitutional” bench to listen the matter.

A constitutional bench is formed only when the court is convinced that there is a “substantial question of constitutional law” that is raised in the case. The basic question is why members of a community should be persecuted based only on their sexual orientation or preference. The case-hearing by the constitutional bench of the Supreme Court has given hope to the LGBTQ community as the move represents the notion that the Indian judiciary is going to review this matter seriously. This decision will be the last judicial recourse available to the petitioners who are looking at a progressive remedy for all those suffering under the draconian and colonial law. No further update is received till now.

Fundamental Rights violations by Section 377:

Every human is born with a basic right to choose his/her partner. This right is totally subjective. Every person shall be allowed to consent freely. This is one of the many reasons why sexual harassment and rape are crimes against society. Consent must be obtained freely and without the intervention of the state agencies.

If we come down to Article 14 it states:

“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

We can sense a direct contradiction between Article 14 and Section 377 as the former gives the right to each and every person to be equal before the law whereas the latter restricts a particular section of people from selecting their partners for a matter as personal as “consensual” sex based on gender. When such a gender discrimination is present, Article 14 is violated.

The right of privacy is implicit to the right of life and liberty under Article 21. In order to live happily a person needs to live his life with peace and dignity in his individual sphere without any interference of law. Private, consensual sexual relations will also come under the ambit of Article 21. The Supreme Court has held that under Article 21, life does not means mere existence but it also includes the necessary freedom to exercise the means for existence. Therefore, according to Article 21 life without freedom amounts to mere existence which does not, in reality amounts to “life” by any means. Hence, Section 377 itself is violative to the basic fundamental idea of life vested within Article 21 since a very important sphere of life includes love, affection and even sexual relations from a life-partner.

Why should Section 377 be amended and not scraped?

Section 377 cannot be termed as a “bad law” in totality as it covers one of the most ignored problems in our society that is “male rape” which is not covered under Section 375 or 376 of the Indian Penal Code, 1860 or any other statute. Section 375 and 376 define rape and the punishment for rape. Male rape is committed when two men whether major or minor, indulge into sexual activities without consent.

Section 377 also criminalizes bestiality which is sexual intercourse with a non-human species. Bestiality or zoophilia is categorized as animal abuse and is treated as a crime against nature. It also adds to the spread of harmful diseases.

Section 377 was drafted under the British rule in the view of the then existing society. Currently, the scenario of the Indian society has changed drastically. It is diverse. The citizens are aware of their rights. The police must not enter somebody’s bedroom to keep an eye upon another persons’ intimate life. If this leeway is given, there will be rampant violation of one’s right to privacy.

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