The Crime from Colonial Hangover, Part I: Section 377 IPC

What does the Section say?

Section 377 of the Indian Penal Code reads as follows:

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 offense described in this section.

Picture Courtesy: Factly

So what does it actually mean?

There are two important things to observe here:

  1. a) Gays and Lesbians or Homosexual relations are not illegal. No law in India criminalizes identifying with the LGBT community or having a homosexual relationship.

The law clearly refers to only intercourse, involving penetration, which is “against the order of nature” (will get to that in a bit) and does not essentially criminalize the sexual identity or the relationship. So as per Indian laws, an individual cannot be arrested for either identifying as a member of the LGBT community or for having a relationship with anyone of their own gender.

  1. b) The law does not refer to homosexual acts alone. Though it does include homosexual acts and harms the LGBT community the most, it essentially covers any act which includes (i) penetration, and is (ii) against the order of nature.

To understand the meaning of the words “order of nature”, we must trace the origin of the law. The Indian Penal Code was drafted in 1860 and since then, the operative part of this section has remained unchanged for the last 157 years. This Law was created by people of another country who were ruled by a particularly strong and dogmatic Church — a church which believed that sex which does not occur between a man and a woman, and not for the purpose of reproduction, was a sin. Essentially, to simplify — as per the ruling society 157 years ago, the ‘natural order’ of intercourse was only intercourse with the intention to conceive. Thus, the law forbade any and every other kind of penetration which would not lead to procreation.

To put it bluntly — consenting adults, even if they are of opposite sexes, in the privacy of their bedroom, can be jailed for anal sex or oral sex as per this law. So why haven’t we seen the law being enforced? The majority (heterosexual folk) saw it convenient to use and ignore its applicability against them. It is also amusing to note that the Law seems to target gay sex and not lesbianism. English law didn’t criminalize lesbianism — not because it condoned it, but because it denied female sexuality altogether. Later, they still didn’t do so because they felt that outlawing it would only make more women aware of lesbianism.

So what’s the current scenario?

Naz Foundation vs Govt of NCT of Delhi & Ors (Delhi High Court): WP(C) №7455/2001

A two-judge Bench of Chief Justice B C Patel and Justice Badar Durrez Ahmed dismissed the petition in 2003 on the grounds that there was no cause for action, terming it as a mere academic challenge to the constitutionality of a legislative provision. A review petition was filed which too was dismissed.

Naz Special Leave Petition & restoration of the case:

Naz filed a special leave petition (SLP) before the Supreme Court, which reinstated the case in the High Court on the grounds that an issue of public interest was involved, which should be entertained. In 2006, Voices against 377, a coalition of gender and child rights groups, became an intervening party to the petition.

On 2nd July, 2009, a Division Bench of the Delhi High Court comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar ruled in favor of Naz and Voices against 377, despite strong objections from the Government, and said: “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution ……. the provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”.

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors: Civil Appeal №15436 of 2009

Koushal, a Delhi-based astrologer, and a few others challenged the Delhi High Court order in the Supreme Court the same year. On 11th December 2013, a two-judge Supreme Court Bench of Justices G S Singhvi and S J Mukhopadhaya held that IPC 377 “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable” and threw the ball into the Parliament’s Court.

Review petitions filed by Naz Foundation, the union government, and others filed in 2014 were quashed by the SC.

Naz Curative Petition: 2016

In February 2016, a curative plea filed was referred to a five-judge Bench and is still pending.

National Legal Services Authority vs Union of India & Ors: Writ Petition (Civil) №400 Of 2012

A Supreme Court Bench of Justices K S Radhakrishnan and A K Sikri directed the Central Government to declare transgender persons as ‘Third Gender’, and said that they would have all rights of marriage, inheritance, and reservation under the OBC category. As a result, the Government drafted the Transgender Persons (Protection of Rights) Bill, 2016 (which deserves its own article because of the problems it has).

Justice KS Puttaswamy (RETD) versus Union of India and Ors WP © 494/2012:- 2016

(The Right to Privacy Case)

The most important judgment as far as dismantling Section 377 IPC is concerned is Paragraph 126 of the Order which held that:

“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lies at the core of the Fundamental Rights guaranteed by Articles 14, 15 and 21 of the Constitution”

The Court in paragraph 127 further discussed the case of Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, which had reestablished Section 377 IPC;

“The expression ‘so-called’ seems to suggest the exercise of a liberty in the garb of a right which is illusory. This is an inappropriate construction of the privacy-based claims of the LGBT population. Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”

Navtej Singh Johar and Ors vs the Union of India: Writ Petition №76/2016

Navtej Singh Johar, a Sangeet Natak Akademi awardee Bharatnatyam dancer, and four others, all members of the LGBT community themselves, filed a writ petition in the Supreme Court challenging IPC 377.

On 8th January 2018, after heavy reliance was placed on the Right to Privacy judgment, the Supreme Court decided to set up a larger Bench to decide this case.

Pending Cases:

  1. Curative Petition by Naz Foundation (PIL):

Challenges — Section 377 IPC discriminates against members of the LGBT community and hence fails the test of Article 14.

  1. Navtej Singh Johar and Ors vs the Union of India (WP 76/2016) (Writ of Mandamus):

Challenges- Section 377 IPC violates Article 21 and the Right to Privacy of individuals.

Picture Courtesy: The Week

Conclusion:

Apart from the two pending cases, as stated previously, this Section should have been struck down on grounds of stupidity, or as we say in legal terminology, unreasonableness, and arbitrariness. It was way back in 1991 that AIDS Bedhbhav Virodh Andolan (ABVA) had published Less Than Gay: A Citizens’ Report on the Status of Homosexuality in India. This was the first detailed advocacy of gay rights in the country, which pointed out that India had “tolerated same-sex eroticism for centuries”.

A walk alongside some Hindu temples’ walls, thumbing through texts and ancient laws in India will show you that homosexuality not only existed in Indian society, but was also accepted, appreciated and given enough importance so as to be able to form reliefs on temple walls. And yet, the very people who profess to be gurus and leaders with knowledge grounded in Hinduism are the ones that believe that they can ‘cure‘ homosexuality, or that it is against Hindu ‘culture‘. It is nothing short of hypocrisy, therefore, to assert that homosexuality is a product of ‘western influence’.

For starters, homosexuality is as natural an occurrence as heterosexuality. From animals to human beings, the exhibition of homosexuality as a trait is not an anomaly. Secondly, a sexual orientation is as natural as having body parts, and is technically not an aberration on anything that is deemed normal. That being said, we don’t have a right to claim that we have a definition of what normal is, anyway — this idea of what normal is and isn’t is heavily subjective.

It is time that the ghosts of our colonial past, which still haunts our citizens, are put to rest permanently. For good.