[Current] Section 377

Introduction:

The Indian Penal Code has been enacted in the year 1860. After its enactment 153 ago, lot of amendments, modifications were also made by the Supreme Court that suits the prevailing trends in the society. Sec. 377 of this Code deals about prohibiting unnatural offences.

That means, “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.”

In the recent judgment of Supreme Court, in the case of Suresh Kumar Koushal and another Vs. NAZ Foundation and others uphold the constitutionality of Sec. 377 of the Indian Penal Code, which has been widely perceived to have espoused a principle of judicial deference to Parliament. This view has forced a shift of focus amongst gay activists and right-thinking citizens to legislature, in the hope of corrective reform.

Matter of controversy:

            Three main constitutional questions confronted the Court in this case:

1.      Whether it violated Art. 14 of the Constitution?

2.      Whether it violates the right of LGBT people to live with dignity?

3.      Whether criminalizing private consensual acts between adults violates their right to privacy, also protected under Art. 21 of the Constitution?

Art. 13 of the Indian Constitution verbalized that All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Art. 13 make the chapter of “Fundamental Rights” sacrosanct and thus secure the supremacy of the Constitution in this regard. If the Parliament enacts a law transgressing any of the limitations, the Supreme Court and the High Court are competent to declare the law unconstitutional or void.

Now in this regard, IPC Sec. 377 becomes the matter of controversy. Till 2000, there was no stumbling block to implement this section. The offences were also rare of the rarest cases. Not long ago, due to the influence of western culture, LGBT culture gradually steps into India.

To prevent the spread of HIV AIDS and other Sexually Transmitted Diseases as the intention, a charitable organization NAZ Foundation has been established. NAZ Foundation put forth an assertion that IPC has prohibited homosexuality; it has led to the increasing number of sexually transmitted diseases in the society. Therefore in 2001, it filed a petition before Delhi High Court to repeal Sec. 377.

After prolonged debates and arguments connected with Sec. 377, in 2009 July 2^nd, the judgment was pronounced. It says –

»      Homosexuality is not at all erroneous;

»      An adult without any discrimination as man/woman has the personal right to choose any person as their spouse;

»      IPC Sec. 377 is ultra vires to the Constitution of India;

»      The section violates Art. 14 and 21 of the Constitution;

»      Experts like doctors, psychiatrists have concluded homosexuality is not at all a disease and we should not discriminate them as they are LGBT;

»      It is also a basic human right.

Jolt across the nation:

After its enunciation, it has twisted a buzz all over the nation. Many people argued in favor and against this judgment. Judges, Doctors, Advocates, Actors/Actresses, Politicians, Laymen, etc started sharing their opinion as additional fuel in this burning issue.

Nation-wide arguments favoring it:

v  “England laid the foundation for IPC in India. Even they have accepted homosexuality rights for their citizens. Then why not in India?”

v  “Let us just acknowledge that homosexuals are born with the natural tendency to prefer people of their own sex. If the rule is that opposite poles attract, every rule has an exception.”

v  “Personal liberty is being made the scapegoat here, with a farcical argument of societal morality and decency.”

But it’s also an acceptable point that homosexuality is against Indian Culture:

     Western winds are fast sweeping across India, a land of saints and sages.

     Once we accept, it will create drastic changes in the future of the heritage of our country. We have already given the go-by to the long-cherished ethos of this great nation, by accommodating something that is unnatural and perverse, in the name of personal preference.

     Homosexuality is but an acquired behavior that is caused by peer pressure, low self-esteem, and it is against family values too.

Now it’s all lies in the hands of our Parliament whether to accept or not to accept – to decide the constitutionality of Sec. 377. It’s for the legislators to delete or modify the Section as they deem fit.

But a point to be considered here is if any verdict pronounced against them, then homosexuals will henceforth find it very embarrassing to seek medical assistance openly. The law is only pushing them to engage in unsafe sex. The Supreme Court ruling may marginalize the LGBT community further.

The timeline of this NAZ Foundation case:

2001: Case has been filed before the Delhi High Court

2004, Sept.2: High Court dismissed the case. Review petition was filed again.

Nov.-Dec.: Review petition also dismissed. An appeal was made to Supreme Court.

2006, Apr. 3: Supreme Court again asked High Court to reinvestigate the issue as it is a matter of importance.

2008, Oct. 15:  High Court ordered to produce the reports of Medical Experts regarding the scientific reasons behind the homosexuality.

Nov.: Central Government made a statement that Courts should not interfere with LGBT issues as the Parliament holds the authority to take decision.

2009, July 2: High Court ordered Sec. 377 is unconstitutional and it violates Art. 14 and Art. 21.

July 9: Again an appeal was made to Supreme Court against High Court’s judgment by Social activists and other religious institutions.

2013 Dec. 11: Supreme Court dismissed the judgment of High Court by mentioning that Sec. 377 is an offence to be prohibited.

Dec. 20: Union Government made an appeal against the verdict of the Supreme Court.

Conclusion:

            A combination of inadequate justification, sophistry and a woeful non-application of mind makes the unfortunate conclusion inescapable that the judgment ultimately rests on a deep-seated prejudice shared by the two judges that has no place in a legal judgment. For a proper legal adjudication of the issues raised, it is imperative that a review petition is filed and taken up by the Court speedily. 

References:

(i)                Criminal Manual – Justice M.R. Mallick

(ii)             The Hindu Editorial column

(iii)           Constitution of India – D.D. Basu