In this article, Arunseshan Chandrasekarna discusses pluralism under the Indian Constitution in the wake of the recent judgment of the Supreme Court on Section 377.

“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.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Evolution of Section 377

Buggers Act, 1533 enacted under the reign of King Henry VIII is first of its kind that gave meaning to unnatural sex. This act defined the term buggery, an unnatural sexual act against the will of God and man. The Act criminalized homosexuality and bestiality.

In 1828, the act was repealed and replaced by offences against the persons Act, 1828. This Act gave wider and extensive definition for unnatural sex. The said Act was further repealed and replaced by Offences Against Person Act, 1861 (Fig.1).

Unnatural Offences

1. Sodomy and Bestiality.

2. Section 61 of the Offences Against Person Act, 1828 : Whosoever shall be convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for Life or for any Term not less than Ten Years.

3. Attempt to commit an infamous Crime (Section 62) – Whosoever shall attempt to commit the said abominable Crime, or shall be guilty of any Assault with Intent to commit the same, or of any indecent Assault upon any Male Person, shall be guilty of a Misdemeanor, and being convicted thereof shall be liable, at the Discretion of the Court, to be kept in Penal Servitude for any Term not exceeding Ten Years and not less than Three Years, or to be imprisoned for any Term not exceeding Two Years, with or without Hard Labour.

4. Carnal Knowledge defined (Section 63) – Whenever, upon the Trial for any Offence punishable under this Act, it may be necessary to prove carnal Knowledge, it shall not be necessary to prove the actual Emission of Seed in order to constitute a carnal Knowledge, but the carnal Knowledge shall be deemed complete upon Proof of Penetration only.

Indian Penal Code, 1860, drafted by Thomas Babington Macualy, Chairman of 1^st Law commission who is the principal architect of IPC, incorporated Section 377, Unnatural Offences inspired from the above-mentioned Acts.

In England, the act of homosexuality was decriminalized in the year 1967 by an amendment in Sexual offences Act, 1967 and UK even accepted same sex marriages and legalized it.

In India, Post-independence, there is no much talks on this subject till early 90’s. By August 11,1991 there was a demonstration by AIDS Bhedbhav Virodhi AndoIan(ABVA) against the suspect and arrest of homosexuals under Delhi Police Act and a petition was sent to parliamentary committee for decriminalizing s.377 of IPC.

In April 1994, the same organization filed a writ petition questioning the constitutional validity of S.377 of IPC in Delhi High Court in a response to an incident happened in Tihar jail, as the authorities refused among inmates for the supply of condoms despite known prevalence of homosexuality.

In 2001, Naz foundation (India) Trust moved a petition in High Court for allowing homosexual relationship between consenting adults. The lawsuit was dismissed mentioning that the organization have no locus standi in this matter.

Further, the Naz foundation appealed against the dismissal of the case in Supreme Court (SC) and SC concurred with the appellant.

In 2009, Chief Justice Ajit Prakash Shah and Justice S.Muralidhar of Delhi High Court pronounced the historic Judgement, decriminalizing consensual sexual acts between adults. Furthermore, this judgement was to be in force until the Parliament decided to amend Section 377 (Naz Foundation v. Government of NCT of Delhi (“Naz Foundation”), 111 DRJ 1 (2009)).

In December 11,2012, two member bench of Supreme Court overruled the judgement of High Court. The Judges added that parliament is the authority that can amend law and not High Court. Hence the Judgement is Constitutionally Unstable.

(Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors. (“Suresh Kumar Koushal”), (2014) 1 SCC 1)

Shashi Tharoor, Member of Parliament, raised awareness in social media and introduced a private bill in parliament allowing adults have consensual non-vaginal sexual intercourse, thus effectively decriminalizing homosexuality. However it was disappointing to see that this bill was almost immediately rejected without it even being introduced.

 National Legal Services Authority v. Union of India (“NALSA”), (2014) 5 SCC 438, which construed Articles 15 and 21 of the Constitution of India as including the right to gender identity and sexual orientation, and held that just like men and women, transgenders could enjoy all the fundamental rights that other citizens of India could enjoy.

 Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (“Puttaswamy”), (2017) 10 SCC 1, a nine-Judge Bench of this Court unanimously declared that there is a fundamental right of privacy which enured in favour of all persons, the concomitant of which was that the right to make choices that were fundamental to a person’s way of living could not be interfered with by the State without compelling necessity and/or harm caused to other individuals.

In 2018, Constitution bench of Supreme Court (5-0) heard the constitutional validity of S.377 and pronounced S.377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.

Reasons why section 377 of the IPC was held unconstitutional to the extent it criminalises sexual activities between consenting adults – Analysis of the contentions raised

UNION OF INDIA

The judgement of High Court with respect to Suresh Kaushal case regarding the “consensual acts of adults in private” is left to wisdom of Court.

INTERVENORS

S.377 is not violating of Article 15 of Indian Constitution, as the word ‘sexual orientation’ is alien to Indian Constitution.

It was contended that Court only have power to interpret and not to legislate.

Possibility of Social issues and law & order problem as same sex marriages would become social experiment and results will be unpredictable.

Decriminalization of Section 377 will result in cascading effect in existing law. (S.32 (d) of Parsi Marriage Act, S.10 (2) of Indian Divorce Act, 1889, S.13 (2) of Hindu Marriage Act, 1955, S.27 (7)(1A)(A) of Special Marriage Act, 1954.

Married women will become a victim to the act of her bisexual husband

Decriminalizing Section 377 would result foul to all religious view and Article 25 of Indian Constitution should be considered while pronouncing the judgement.

Prevalence of AIDS is more in people involving homosexual acts compared to heterosexuality.

The right conferred upon transgender community is exhaustive as per NALSA case and further relief can be abusive to right to Privacy.

Family system is a base for our tradition and cultural heritage that is prone to get affected.

Section 377 is a result of principles prevailing in ancient India and now in 2018. Hence Section 377 is more relevant legally, medically, morally and constitutionally.

JUDGES VIEW IN CONSTITUTIONAL VALIDITY OF S.377

DIPAK MISRA, CJI. & AJAY MANIKRAO KHANWILKAR, J. 

TRANFORMATIVE CONSTITUTIONALISM

Indian Constitution is a transforming document with respect to the current trends and the words in the documents should not be interpreted literally but constructed meaningfully with respect to changing times. Discrimination in any sense to the people of this country breaks the basic structure of any democratic society.

With the transformative constitutionalism, Doctrine of progressive realization of rights is in play as such rights evolve with the evolution of society. If the view of Suresh Koushal is to be accepted then it is just a denial of progressive realization of rights.

CONSTITUTIONAL MORALITY v SOCIAL MORALITY

The Constitutional morality binds the nation as large as India into one. Hence, the concept of unity and pluralism co-exist. Constitutional morality cannot be martyred at the altar of social morality and it is only the constitutional morality that can be allowed to permeate in the rule of law. As per Dhananjaya Y Chandrachud, J “Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law, which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behavior”. The eclipse of social morality cannot be used as a contention to deny the fundamental right of even a single individual.

RIGHT TO LIVE WITH DIGNITY

As written by Judges, The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution and quoted Krishna Iyer, J. words, “It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.” In the international arena, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The constitution has given the responsibility to judiciary in protecting the dignity of an individual. Discrimination in the name of sexual orientation, a biological concept, is infringement of a person’s personal liberty, which is violating the freedom of expression.

FUNDEMENTAL RIGHTS ARE NOT FOR MAJORITY

In Suresh Koushal case, it was contended that LGBT community is in minority and that the existence of Section 377 IPC abridges the fundamental rights of a very minuscule percentage of the total population. The reasoning was fallacious as the intention of the framers of our constitution mandates the judiciary to interfere, even if the fundamental right of single individual is in peril.

LITMUS TEST OF Section 377 v Article 14 & 19

S.375 IPC and POCSO Act already penalize non-consensual carnal intercourse. In contrary, S.377 IPC preys the consensual sexual acts which are neither harmful to women nor children. This makes S.377 arbitrary, subjecting LGBT community to Social Pariah and dereliction. Hence violating of A.14 of Indian Constitution.

Carnal intercourse among consenting adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality. Therefore, Section 377 IPC in its present form violates Article 19(1)(a) of the Constitution.

JUDGEMENT

In concurring with the view of Dipak Mishra, CJI. & A.M.Khanwilkar,J. , Rohinton.F.Nariman,J. Dhananjaya.Y. Chandrachud,J. and Indu Malhotra, J. overruled the judgement of Suresh Kumar Koushal and Anr. v. Naz Foundation and Ors., striking down S.377 only with respect to cardinal intercourse between consensual adults. Any acts that are non-consensual or any cardinal acts with animals fall with in the purview of S.377.

Reference:

1. Offences against the person Act, 1861 (websource) (http://www.legislation.gov.uk/ukpga/Vict/24-25/100/contents/enacted)
2. The judgement of Navtej Singh Johar & Ors v Union of India (websource)
3. Section 377 IPC: Summary Of Four Separate Judgments
   (https://www.livelaw.in/section-377-ipc-summary-of-judgment-in-4-points/)