SECTION 377 OF INDIAN PENAL CODE: VICTORIAN ERA”S MORALITY
Author: ADITYA CHOUDHARY
Section 377 of the Indian penal code,1860 makes certain acts against the law. Indian penal code was drafted by Lord Macaulay during the British Colonial era. Section 377 deal with sex offences against the order of nature. the section does not criminalize any group of people of deferent identity or LGBT community that loosely defined grouping of lesbians, gay, bisexuals, transgender but sexual acts. However, it is always used by law enforcement agencies for the harassment of this very venerable LGBT community, not in the cases of consenting heterosexuals.
Provision of section 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. The explanation attached to this section states that penetration is sufficient to constitute the carnal intercourse necessary to the offence under this section.
The interpretation of this section implies that it makes every kind of sexual acts like sodomy, bestiality, carnal intercourse by a man with man, or by a woman with a woman, or by a man or woman with an animal, non procreative sexual act by a man with a woman is also punishable under this section only procreative vaginal intercourse is legal and according to the nature not any other. consent of adults for their sexual acts in this section is immaterial, therefore it criminalizes consensual homosexual acts.
Criminalisation of sexual act of homosexuals under this section 377 IPC is used as the weapon for abuse, detention, and questioning, extortion, harassment, forced sex by police and law enforcing authorities and it also serves a good reason for homosexual relationships as a stigma for society because anything which is illegal is not acceptable by the society, and because of the sexual orientation of such group they are seen differently from order of nature this discrimination is not based on their gender but their sexual orientation.
An Individual’s sexual orientation is individual’s potential for finding emotion, affection, sexual attraction, intimate or sexual relation which can be towards same sex or opposite sex, this is not a mental sickness but this is their way of expressing themselves, it is their right to choose, sexual orientation of homosexuals or LGBT community towards same-sex. all the sexual acts which can be performed by this community fall under IPC 377.
HISTORICAL BACKGROUND OF LEGISLATION IN INDIA
The first evidence of sodomy, bestiality or unnatural sexual act as a crime can be traced back in 1290, Fleta under common law in England and after that in the Britton, 1300.both the records suggested that the person liable for the crime should be burnt alive. Later such acts were prosecuted under the buggery act of 1533. Buggery act was re-enacted by Queen Elizabeth I, and subsequently, it becomes a charter for the criminalisation of sodomy in British colonies and India was also under British rule at that time. So when IPC was drafted by Lord Macaulay, sodomy was continued as an offence under section 377 of the act.
Fight against section 377 for the decriminalisation of the part of the section under which consensual sexual acts between adults in private punishable started back in 2001.
When NGO NAZ foundation filed a petition before the DELHI HIGH COURT and NAZ foundation was later joined by other petitioner seeking for their rights.
Delhi high court gave a historical judgment by declaring the part of section 377 which criminalise consensual sexual acts of adults (who are 18 years old) in private, unconstitutional because it is violating article 21,14, and 15 of the constitution of India.
The decision of Delhi high court was seen as a victory for the LGBT community.
But in 2013 apex court reversed Delhi high court decision and again criminalised consensual sexual acts against nature. in petition filled by Suresh Kumar Kaushal and others on the ground of social morality. NAZ foundation, social activists, LGBT community and parents of such individuals opposed the appeal to the apex court and stand in the support of high courts 2009 decision. The decision of the apex court was criticised on large scale and it was seen as a major setback for society. LGBT community takes the decision as the violation of their fundamental rights.
Apex court gave various reasons for their decision.
1. Any law made by parliament and enacted are presumed to be valid and if not then can be scraped by parliament, and evidence should be produced if that law is violating the constitution.
2. Supreme court said that there is very less number of evidence of misuse of the law by law enforcing authorities and law cannot be invalid on the ground of misuse.
3. Supreme court held that section 377 talks about sexual acts, not about sexual orientation and if such acts are performed by heterosexuals then they are also punished under this section so the section is not targeting rights of LGBT community or doing any discrimination.
4. supreme court held that any other countries where homosexuality is legalised can’t be considered in context to legalize same in India.
The apex court left the opportunity for the parliament to consider the validity of the law.
Right to privacy as a fundamental right and section 377
The Apex court, in August 2017 gave a landmark judgment in a writ petition filed by justice KS Puttaswamy(RETD.) and others., nine judges bench held that Right to Privacy is a fundamental right under article 21 part 3 of the constitution. It is also observed that sexual orientation is an essential feature of privacy. in the year 2009 on of the ground for the decriminalising section 377 part of consensual sexual acts of an adult was right to privacy, later apex court overruled the decision. Now that Right to Privacy is upheld, the decision on Section 377 is subject to being challenged.
Supreme court on May 01, 2018 issued a notice to centre to reply and give a view on petition filled by individuals belonging to the LGBT community seeking quashing section 377 criminalized homosexual acts.
On July 11, 2018, central government by an affidavit left the issue of the validity of section 377 of IPC according to the constitution or not to be decided by the apex court. the hearing of issue commenced before a five-judge bench of the supreme court.
CRITICAL ANALYSIS OF REASONING BEHIND 377
There are several reasons are given by social activists, jurists and government for continuing criminalisation of the section, based on public morality or maintain the law and order and to protect the child and women from sexual abuse, some of them are discussed below.
HOMOSEXUALITY AND INDIAN MORALITY
No any other aspect of an individual’s life is more important and meaningful to the existing of human identity then the sexual relation. The sexual orientation of one’s way of expressing their identity and emotions.
then how can be a consensual part of expressing one’s identity be a crime. our Indian society sees such individuals whoever part of this vulnerable community as sick person or stigma to the society and against the morality of our culture but in many ancient historical evidences such as mythological characters, architectural structures, smrities it can be seen that homosexuality or LGBT community was always a part of Indian society Temple in Khajuraho, there are images of women embracing each other and men showing their genitals to other men. Historians and scholars consider them as undeniable evidence of homosexuality. Manusmiriti, an ancient law code, conspicuously shows that homosexuality was being practiced by both men and women in those days. The Ramayana tells an anecdote of the King Dilip who dies leaving his two wives. Lord Shiva appears in the dream of those widows and advises them to engage in lovemaking and sexual activities to have a baby. As per the divine advice they do sex and consequently, one of them gets pregnant and gives birth to a child, and that child later becomes the famous king Bhagirath, these ancient texts are very much vocal about the consensual sexual relationships between men and women. so if the homosexuality was part of our society in ancient time then how can it be against our morals and values?
Section 377 is based upon Cristian moral and ethical standards, which conceive sex only a function for sole purpose of procreation and anything other then that is against the order of nature .in today’s 21 century modern society of India where we talk about equality, equal rights, equal opportunities for every individual then, how can we discriminate with this vulnerable LGBT community on the basis of there sexual orientation or preferences?
In 2009 Government of India, in his affidavit, seeks to justify the retention of Section 377 IPC on the statute book broadly on the reason that it has been generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not mere homosexuality, but there are separate laws and acts for the same purpose “the Protection of Children from Sexual Offences Act (POCSO Act) 2012” was formulated in order to effectively address sexual abuse and sexual exploitation of children. and LGBT community Is seeking for the decriminalisation of that part only where consensual sexual acts of adults fall under punishment, not non-consensual acts.
Law Commission in its 172nd report recommended the repeal of section 377 and in 2015 in historical judgment given by the supreme court in NALSA case acknowledged the transgender community people as the third gender, when we are recognizing third gender existence then there should be also freedom for them to express their love, intimacy, and sexual orientation.
HEALTH OF SOCIETY AND IPC 377
This vulnerable community not only facing social stigma but a lot of hazardous health issues and sexual diseases like HIV/AIDS, STD because of criminalisation of homosexual acts and fear of prosecution they carried out their sexual activities underground and that makes them a high-risk group for these diseases. “According to the annual report,2015 of NACO total number of people living in India with HIV estimated 26.49 lakhs and according to national integrated behavioural and biological surveillance (IBBS),2015.” prevalence among men who sex with men is recorded on the national level is 4.3%.
The issue is now before the supreme court we hope with the LGBT community that apex court will recognise this community’s fundamental rights will do justice with them, for that they are waiting for long. they and have to face discrimination every day and have to fight for their rights, and it is also a responsibility of the society to accept such person as a part of it only change in law will not help them it is our mentality that needs to be changed also.