The Indian Penal Code was drafted in 1860, with little change since then. Change is a constant. Society itself is changing. Section 377 of the Code, was made to tackle against the unnatural offenses. Here we are in 2018, with an unchanged law that affects a particular community. And it shouldn’t matter if they are 50% or 0.01% of the population.
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.
‘Against The Order Of Nature’
When we read the provision, something which would be against the order of nature has not been defined in the code anywhere. It’s the 21st century we are living. Human Rights should be our apex concern, the section prohibits even consensual intercourse between two adult individuals.
The Buggery Act
In 1533, the Buggery Act was passed under the reign of King Henry VII and the topic of sodomy shifted to the powers of the State. The act targeted different aspects which were related to sex between men and men, men and women, and with animals too. The punishment under the act was death, and it was well implemented at that period.
The Legal Battle Against Section 377
In 1991, a Non-Governmental Organization named AIDS Bedbhav Virodhi Andolan became concerned about male sexual health, particularly HIV issues. A report at that time indicated that how section 377 of the Indian Penal Code violates Article 21 of our Constitution. At that time, sexual acts between men inside Tihar jail was increasing. India Today reported “Where does a condom belong? That’s the issue before a bench of the Delhi High Court this month. A writ petition filed by the AIDS Bhedbhav Virodhi Andolan (ABVA), an AIDS activist group, is demanding that condoms be made available to the inmates of Tihar Jail in New Delhi. The petition also challenges the notorious Section 377 of the IPC, a 160-year-old clause outlawing homosexual acts.”
In the year 2001, Naz Foundation, an NGO, filed a Public Interest Litigation (PIL) in the High Court of Delhi for the rights of queer people in the country. The PIL demanded the decriminalisation of gay sex among consenting adults. The foundation was laid.
In the year 2004, the High Court of Delhi rejected the PIL, calling it an ‘academic’ matter, requiring research. Activists filed a review petition, but it was also dismissed by the High Court later that year. The last step of the ladder was to approach the Supreme Court.
The Supreme Court of India directed the High court to reconsider. The petition was opposed by politician B. P. Singhal. His plea was accepted by the High Court to oppose the decriminalization of gay sex.
But other politicians had different views.
Rahul Gandhi said, “I personally believe that these are matters of personal freedom. I think, I would agree more with High Court verdict.” And Shashi Tharoor said, “The Supreme Court has urged Parliament to delete Section 377 from the statute book. As an MP, I am strongly in favour of doing so.” There was also Prashant Bhushan, who remarked, “It was a ‘big day’ for liberal values in the country.”
‘Naz Foundation versus Union of India’, the case in the year 2009, was a remarkable moment for the activists who were supporting the movement against the injustice done with the LGBTQ community. The Delhi High Court judgment in the case stated:
“We declare that Section 377 IPC, insofar it criminalizes 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. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”
In the year 2012, the Supreme Court came into the frame and reviewed the matter once again. In 2013 the Supreme Court of India re-criminalized Section 377, stating that the High Court had given vague reasons for the infringement of rights contended by the petitioners. This decision was unexpected. The petitioners along with activists filed a review petition to look into the matter yet again. Meanwhile the central government also filed a review petition in opposition, but the apex court dismissed the review petition and rejected the plea. But ultimately, the court stated: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”
Justifying its ruling, it said, “The High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgender and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”
But lawyer Anand Grover, who appeared for Naz Foundation was extremely disappointed with the judgment. He said, “The Supreme Court has taken 21 months to tell the lesbian, gay, bisexual and transgender persons that they are criminals in the eyes of the law. The movement for LGBT (lesbian, gay, bisexual and transgender) equality is unstoppable, rooted as it is in the dignity and resilience of the LGBT persons. We will be filing a review of the present decision as soon as it is available.”
The year 2016 marked a positive beginning for the activists because the Supreme Court would likely hear new curative petitions, which were referred to a larger bench.
The year 2017 delivered a landmark judgment related to privacy. In August 2017, in the case of (Retired) Justice Puttaswamy versus Union of India, it was stated that Right to Privacy is a Fundamental Right. The nine judge bench stated “Right to Privacy is an integral part of Right to Life and Personal Liberty guaranteed in Article 21 of the Indian Constitution.”
Part of the judgment read: “The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection. Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the ‘mainstream’. Yet in a democratic constitution founded on the rule of law, their rights are as sacred as those conferred on other citizens to protect their freedoms and liberties. 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 lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution… [LGBT] 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.”
2018 marked new hearings in the month of July. The submissions made by both of the parties were heard the Apex Court and the Supreme Court has reserved the same for the judgment.
There is still another aspect in the debate on striking down Section 377 as unconstitutional—animal abuse. The court in this matter should keep in mind the dignity of animals too, if the whole section would be held unconstitutional, then it would be a blunder for the latter.
In January 2018, the year started with an unusual incident. Two cows were tied up with a rope and raped. Most recently, a pregnant goat was sexually abused by eight men in Haryana, which resulted in the death of the animal. It was not only one life which was taken away. Two lives were finished by men which police believed were ‘intoxicated. The accused were charged under Section 377 and Section 429 of the Indian Penal Code. These are only two cases which indicate how will the removal of Section 377 will affect lives. But, while protecting animals, Section 377 should be altered. Because consenting intercourse between two individuals in the 21st century should not be a crime anymore.