Decoding the Contours of Section 377 I.P.C: From Criminalization to Decriminalization

Anmol Paniya[1]

Abstract

The Supreme Court of India, in the instant Writ Petition, has decriminalized Section 377 and given effect to the LGBTQ community to facilitate the exercise of homosexuality. It is a welcome step of the apex judiciary which has addressed the long awaited demand for decriminalizing Section 377 of Indian Penal Code in the Indian legal system. Indeed the force of the document’s rhetoric is astonishingly powerful as despite being in agreement, the judges delivered four separate judgments, each one echoing the others about the absolute need to decriminalise homosexuality. It has imbibed upon the idea of transformative constitutionalism while relying on the need for inclusivity by fostering greater respect for human rights. It is significant to note that the verdict quotes a variety of thinkers who have influenced the judges’. Appreciation of constitutional morality, however, it seems to have confined itself to replicate the West rather than delving upon our ancient history which is richer in its diversity and plurality. Decriminalization of Section 377 has lit the candle of hope for the LGBTQ community; however, the judgement seems to have maintained a conspicuous silence on its implications on the institutions of family, marriage, and adoption. While judgement goes on to discuss self- autonomy, dignity, sexual orientation in the light of Right to privacy. The landmark judgement has ushered a sense of new sexual morality in India but the battle between the progressive and regressive social moral still looms. This paper aims to critically analyse the judgement decriminalizing Section 377 of IPC.

Introduction                                                                       

The Chief Justice Of India in the case of Navtej Singh Johar V. Union Of India[2] opined by quoting the great German thinker, Johann Wolfgang Von Goethe,“I am what I am, so take me as I am” along with Justices A.M. Khanwilkar , D.Y. Chandrachud, R.F. Nariman and Indu Malhotra, the bench declared Section 377 of the Indian Penal Code unconstitutional, making a bold attempt to bring us into the 21st century by ensuring equal rights for all citizens regardless of sexual orientation as the judgment begins with what is allowed for heterosexuals must also be allowed for homosexuals and bisexuals by law. And this constitutional morality is, notably, an exercise in embracing plurality in India.

Justice Chandrachud noted: “Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.”

The truth is that the same sex love in India has been as old as the Ramayana, the Mahabharta, and the age old Vedas. It was with the advent of the British Colonial Raj 200 years ago which introduced and imposed on our judicial system its concept of sin, conjugal love, the straight and the narrow. Men and women across the ages belonging to different religion believed in a much more elastic sense of love and lust. The Ramayana describes two widows of King Galipa who lived in extreme love together or Sampriti. The most popular story on love, sex, and gender revolves around the Hindu God Vishnu, who incarnated himself as Mohini when he wanted to trick the demons. In Mahabharta, the King Drupada raises her daughter Shikhandini as a man and even marries her off to women. Looking intricately, we find that the court has acknowledged several literary and philosophical figures from the West. There is nothing wrong with quoting J.S. Mill, Wilde and Shakespeare in order to add literary, philosophical and historical heft to one’s judgement, but when almost all of these thinkers come from a single tradition, then that militates against our diversely populous landscape of desires. Here is what the story looks like if we follow-as the ruling largely does, the trajectory of what it calls the “Judeo-Christian tradition”. Anything other than marital procreative heterosexuality is suspect and to be treated with great violence. The Book of Leviticus from the Old Testament of the Bible, dating from well over 2000 years ago, pronounces all manner of misery on men who lie with men. In such a tradition, homosexuality has always been covered in a cloud of shame, and violence has attended it for centuries.[3]

Indeed, the recent Supreme Court judgment, despite being a path-breaking and brilliant and brave, it confines itself largely to the Western landscape that seems to replicate rather than repudiate the colonial mind set from which it seeks to liberate us.[4]

Also Read  DNA Profiling: Penumbra of Criminal Law

Judicial Pronouncements                                                 

The Court, as the final arbiter of the Constitution, has to keep in view the necessities of the needy and the weaker sections. The role of the Court assumes further importance when the class or community whose rights are in question are those who have been the object of humiliation, discrimination, separation, and violence by not only the State and the society at large but also at the hands of their very own family members. The development of law cannot be a mute spectator to the struggle for the realisation and attainment of the rights of such members of the society. 

Recently, in Shakti Vahini[5], the Court has ruled that the right to choose a life partner is a facet of individual liberty and the Court for the protection of this right has issued preventive, remedial and punitive measures to curb the menace of honour killings. Another recent case wherein the Supreme Court while discharging its constitutional duty did not hesitate to protect the fundamental right to die with dignity is Common Cause[6] wherein the Court stepped in to protect the said fundamental right of those who may have slipped into a permanent vegetative state, who again form a very minuscule part of the society.

In Chiranjit Lal Chowdhury v. Union of India[7], Supreme Court rendered the classification to be reasonable from both procedural and substantive points of view.  The legislature is fully competent to enact laws which are applicable only to a particular class or group. But, for the classification to be valid, it must be founded on an intelligible differentia and the differentia must have a rational nexus with the object sought to be achieved by a particular provision of law.

In Puttaswamy [8], the right to privacy has been declared to be a fundamental right as being a facet of life and personal liberty protected under Article 21 of the Constitution.   In view of the above authorities, it was observed by the Court that Section 377 IPC, in its present form, abridges both human dignity as well as the fundamental right to privacy and choice of the citizens, howsoever small as to include the liberty of a single person of the society. The authority in NALSA[9] is one such recent illustration where the rights of transgender as third sex were recognized which had been long due in a democracy like ours.

While deciding upon Section 377, in Naz Foundation Case[10], The Delhi High Court had taken the view that Article 15 of the Constitution prohibits discrimination on several enumerated grounds including sex.

The Delhi High Court judgment was challenged in Suresh Koushal [11] wherein this Court opined that acts which fall within the ambit of Section 377 IPC can only be determined with reference to the act itself and to the circumstances in which it is executed. While so opining, the Court held that Section 377 IPC would apply irrespective of age and consent, for Section 377 IPC does not criminalize a particular people or identity or orientation and only identifies certain acts which, when committed, would constitute an offence.

In the present case, the Court while decriminalising Section 377 has also drawn its inference from the US Supreme Court, Lawrence v. Texas[12],  where the U.S. Supreme Court observed that the said issue neither involved minors nor persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused nor did it  involve public conduct or prostitution nor the question whether the government must give formal recognition to any relationship that homosexual persons seek to enter, the issue was related to two adults who, with full and mutual consent of each other, engaged in sexual practices common to a homosexual lifestyle. The Court declared that the petitioners were entitled to respect for their private lives and that the State could not demean their existence or control their destiny by making their private sexual conduct a crime, for their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without the intervention of the State.

Human Rights Perspective of Section 377: Understanding the Right to Life, Equality and Freedom

The Supreme Court in the present case has observed that  Section 377 IPC, in its present form, is  violative of the right to dignity and the right to privacy,  has to be tested, both, on the pedestal of Articles 14 and 19 of the Constitution as per the law laid down in Maneka Gandhi[13] and other later authorities. The court has also made reference to Article 12 of the Universal Declaration of Human Rights, (1948) which states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence or to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”   Similarly, the Court has also quoted Article 17 of the International Covenant on Civil and Political Rights, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, and correspondence, nor to unlawful attacks on his honour and reputation.” According to the court, an examination of Section 377 IPC, it subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment.  Therefore, in view of the law laid down in Shayara Bano[14], the Court in the instant case held that Section 377 IPC was liable to be partially struck down for being violative of Article 14 of the Constitution.  The court has also examined Section 377 IPC on the anvil of Article 19(1)(a) and revealed that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality and found Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

Also Read  Constitution versus Customs with Special Reference to the Jallikattu

Tenets of Self-Determination, Individual Autonomy, Identity and Sexual Orientation

Within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such orientation or choice that reflects an individual‘s autonomy is innate to him/her. It is an inalienable part of his/her identity. The said identity under the constitutional scheme does not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. While talking on sexual orientation, the Court notes that every human being has certain basic biological characteristics and acquires or develops some facets under certain circumstances.  The first can generally be termed as an inherent orientation that is natural to his/her being. The second can be described as a demonstration of his/her choice which gradually becomes an inseparable quality of his/her being, for the individual also leans on a different expression because of the inclination to derive satisfaction. The third one has the proclivity which he/she maintains and does not express any other inclination. The first one is homosexuality, the second, bisexuality and third, heterosexuality. The third one is regarded as natural and the first one, by the same standard, is treated to be unnatural. When the second category exercises his/her choice of homosexuality and involves in such an act, the same is also not accepted. In sum, the act is treated either in accord with nature or against the order of nature in terms of societal perception.

The Supreme Court, as well as other constitutional courts, have time and again realized that in a society, undergoing fast social and economic change, static judicial interpretation of the Constitution would stultify the spirit of the Constitution. Accordingly, the constitutional courts, while viewing the Constitution as a transformative document, have ardently fulfilled their obligation to act as the sentinel on qui vive for guarding the rights of all individuals irrespective of their sex, choice and sexual orientation.

Transformative Constitutionalism- The Concept of Progression with Inclusivity

The expression transformative constitutionalism can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day. The objective of transformative constutionalism as a fundamental pillar of our Constitution was observed in the Court in State of Kerala and another v. N.M. Thomas and others[15].

In the case of Saurabh Chaudri and others v. Union of India [16], it was observed, “Our Constitution is organic in nature, being a living organ, it is ongoing and with the passage of time, the law must change. Horizons of constitutional law are expanding.”   The Supreme Court in the instant case has significantly pointed out the concept of inclusivity. After the privacy judgment in Puttaswamy[17] , the right to privacy has been raised to the pedestal of a fundamental right. The reasoning in Suresh Koushal[18], that only a minuscule fraction of the total population comprises of LGBT community and that the existence of Section 377 IPC abridges the fundamental rights of a very minuscule percentage of the total populace, is found to be criticized.  The said reasoning in Suresh Koushal [19],  has been opined as  fallacious on the ground that the framers of Constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only and that the Courts ought to interfere only when the fundamental rights of a large percentage of the total populace is affected.

Also Read  IHL: The Basics of Human Rights

Conclusion

The verdict of the Supreme Court’s five-judge constitutional bench decriminalising homosexuality and recognising the constitutional rights of LGBT persons has led to a ray of hope towards moving ahead to a progressive society. Reading the opinions together, it is clear that at the heart of the verdict lies an overwhelming endorsement of the right to personal autonomy and choice. The judges have held that this right includes the right to choose one’s partner, the right to sexual autonomy and agency, the right to love, to live one’s life with dignity, not confined just to the privacy of the home but attaching to the body of the individual and extending to public spaces. The idea is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights and other freedoms. It is in this way that transformative constitutionalism attains the status of an ideal model imbibing the philosophy and morals of constitutionalism and fostering greater respect for human rights.  It ought to be remembered that the Constitution is not a mere parchment, it derives its strength from the ideals and values enshrined in it.

The judges have identified the ideals of plurality, diversity, inclusiveness, equality, fraternity, and liberty, among others, as being central to the character and vision of the Indian Constitution. In their powerful articulation of constitutional morality, especially through the constitutional value of fraternity, the judges are clear that they are not just speaking about state violations of rights, but also violations by other actors in society. However, the court seems to have maintained an utter silence on certain crucial issues such as its implications on the institutions of family, marriage, and adoption.

As Justice Indu Malhotra, in her concurring opinion, stated that history owes an apology to LGBTI persons and their families, for the ignominy and ostracism they have suffered through the centuries. The remorse evident in her statement sums up the mood of the court, which, in overturning the Supreme Court’s 2013 decision in Koushal, has made amends for the grief, pain, and rage caused by the callous words of the judges in that case.

Navtej Singh Johar V. Union Of India[20] thus inaugurates a phase of healing and hope, a moment of joy, remembrance and gratitude, of overwhelming relief and  an opportunity to pause and look back at the years of tireless activism, of countless untold stories and of the contributions of people in different capacities from all over the world.


[1] LL.M. Student, Himachal Pradesh National Law University, Shimla

[2] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 (India).

[3] Madhavi Mennon, The landscape of desires, India Today, (September 15,2018), https://www.indiatoday.in/magazine/cover-story/story/20180924-the-landscape-of-desire-1338620-2018-09-15

[4] Id at 2

[5] (2018) 7 SCC 192.

[6] (2018) 5 SCC 1.

[7] Chiranjit Lal Chowdhury v. Union of India (1950) 1 SCR 869.

[8] K S Puttaswamy v. Union of India, (2017) 10 SCC 1.

[9] National Legal Services Authority of India v. Union of India, (2014) 5 SCC 438.

[10] Naz Foundation v. Government Of NCT of Delhi and Others, (2009)111 DRJ 1.

[11] Suresh Kumar Koushal and Others v. Naz Foundation and Others, (2014) 1 SCC 1.

[12] Lawrence v. Texas539 U.S. 558 (2003)

[13] Maneka Gandhi v. Union Of India and another (1978)1 SCC 243.

[14] Shayara Bano v. Union Of India (2017) 9 SCC 1.

[15] State of Kerala and another v. N.M. Thomas and others AIR 1976 SC 470.

[16] Saurabh Chaudri and others v. Union of India (2003) 11 SCC 146.

[17] Supra Note 8.

[18] Supra Note 11.

[19] Ibid

[20] Supra note 2