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Reasonable classification : ground to criminalize Section 377 of the IPC or not

January 6, 2021

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This article is written by Darshit Vora from SVKM Narsee Monjee Institute of Management Studies, the article analyses the concept of reasonable classification in detail and further, it covers whether it was reasonable or merely an excuse to criminalize Section 377 on the ground of reasonable classification.

Table of Contents

Introduction

The test of reasonable classification mentions that classification can be made among the individual or a group by the State but that differentiation should not be arbitrary and inconclusive. The differentiation made should correspond to the object of the act and must be sensible so there is no unwanted discrimination.

Illustration: According to an act passed by the legislation which allows boys to drive a car but prohibits girls from driving a car this act won’t stand the judicial scrutiny because the difference made is not a reasonable one.

Article 14 of the Indian Constitution: The State shall not deny any person equality before the law or equal protection of laws within the territory of India.

It forbids class legislation but doesn’t forbid reasonable classification. For a valid classification, the prescribed law must fulfil two conditions:

The classification must be made on the grounds of intelligible differentia.
The differentia must have a rational relation with the object sought to be achieved in the act.

Intelligible differentia refers to a distinction made between persons or things on rational grounds that has a reasonable mind to be understood. Intelligible differentia is a part of reasonable classification under Article 14 of the Indian Constitution. According to Merriam Webster, differentia can be defined as a factor that distinguishes one state from another. So intelligible differentia refers to differences made between two groups on intelligible grounds.

The condition of intelligible differentia comes into light equals are treated unequally in cases where unequal treated differently than the act must not satisfy this condition.

Article 14 allows classification or differentiation among groups on reasonable grounds.

The differentia in the legislation should be such that it should have a nexus with the object of the act. If the legislation doesn’t have a reasonable ground of differentiation then that act can be considered as arbitrary.

Illustration: If a land acquisition act is being passed in the parliament but some provisions of the act mention that a black person cannot acquire a property or a female cannot acquire a property the listed provisions cannot stand the judicial scrutiny as because it is contradictory that the object that act is sought to achieve.

The concept of equality is taken from the American Constitution “No states shall deny to any person with its jurisdiction the equal protection of the law”. However, the concept of absolute equality is an imaginary one. People who are in similar circumstances should be treated alike.

Justice Chandrachud has given grounds for valid classification in Ramkrishna Dalmia vs Justice Tendolkar :

The law is constitutional even though it is related to a single individual if the single individual may be treated as a class in itself.
The burden is on him who attacks to show that there is a transgression of constitutional provisions.
The presentation may be rebutted in certain cases, where there is no classification at all and no difference peculiar to any individual and not applicable to any other individual or class and yet the laws hit only a particular individual or class.
It must be presumed that the legislature and correctly appreciates the need of its people that the laws are directed to problems made manifest by experience and that its discrimination based on adequate grounds.
To sustain the presumption of constitutionality the court may take into consideration matters of common knowledge matters of report history of times and may assume that every state of facts which can be conceived existing at the time of the legislation.
The legislation is free to decide the degrees of harm and may confine itself to those cases where the need is the clearest.
Good faith and knowledge of the existing condition on the part of legislation can be presumed. If there is nothing on the face of the law or surrounding circumstances brought to the notice of the Court the classification may be regarded as reasonably as based. There must be some undisclosed and unknown reasons for subjecting individuals and corporations to be hostile or discriminating legislation.
The classification can be based on different grounds geographical, according to objects or occupations.
The classification must not be scientifically perfect or logically complete.
There should not be any discrimination on procedural or substantive law.

The doctrine of reasonable classification is very rightly interpreted by Justice Bhagvati in the case of R.D. Raju vs Airports Authority.

The doctrine of classification is merely a judicial formula for determining whether the legislative or the executive action in question is arbitrary. And therefore constituting a denial of equality.

Cases related to the concept of reasonable classification

ST Sadiq vs State of Keralav (2015)

Facts: Under Section 3 of the Kerala Cashew Factories Act, 1974 the state acquired 46 factories. A writ petition was filed in 36 factories in the Supreme Court. The court ordered that the possession should be handed over to the owners. Another petition was filed by the 10 factory owners where the Court has the same judgment. An ordinance was passed which mentioned that the act has the effect of acquiring 10 factories and brought in force retrospectively.

Judgment: The Court set aside the ordinance mentioning the reasoning that there was no intelligible differentia 36 factories that were functioning under the retrospective owners and 10 factories which were acquired. Therefore it was struck down.

The Court struck down the section which abridges the right to equality because classification is not made on an intelligible ground.

Charanjit Lal Chawdary vs Union of India(2019)

Facts: The shareholders of the Company named Sholapur Spinning weaving Co. Ltd has been involved in mismanagement which led to a closure of the mill. The action of the Company affected the production and also led to unemployment among workers. The central government then passed an ordinance specifically focussing on one company. The ordinance provided power to the government to appoint directors to manage the company. The petitioner challenged the ordinance as violative of Article 14 of the Indian constitution because a single company and its shareholders were subject to the disabilities.

Judgment

The Supreme Court dismissed the petition that a single individual can be treated as a class by itself. Solapur and Company company caused mismanagement and affected the production of essential commodities and caused the unemployment of a huge section of society.

In the above, differentiation made by the legislation was held reasonable because it was considered as a class in itself.

M Balaji V State of Mysore (1962)

Facts: An order was issued to provide reservation up to 68% in medical and engineering colleges in Mysore. The classification is as follows:

1 Backward class 28%.

More backward class 20%.
SC and ST 18%.

Judgment: The Court struck down the order of the State government because there was no reasonable classification made to grant seats to the students.

The concept of intelligible differentia wasn’t followed in this scenario where no legitimate reason was provided to the Court for making such differentiation.

Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code: Whoever has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment that may extend to ten years and shall be liable for a fine.

Ingredients

Carnal intercourse man, animal.
Act against the order of nature.
The act was done voluntarily.
There is proof of penetration.

Establishment of the legislation

This piece of legislation is being influenced by British laws. Under the burglary act, the person involved in an offence of unnatural sexual intercourse would attract the death penalty.
The Buggery Act of 1533 was repealed in 1828. The People Act, 1828 was passed which defined unnatural offences extensively.
The People Act of 1828 was repealed and replaced by the offence against the Person Act, 1861.
S. 377 was introduced by Lord Thomas and Babbington Macaulay, the president of the Indian Law Commission in 1860.
Before Section, had incorporated Section 361 penalized touching another person or animal or being touched with prior consent by another to seek unnatural lust.

Court observation of reasonable classification concerning section 377

The concept of intelligible differentia is often discussed in section 377 of the Indian Penal Code. In the case of Naz Foundation vs Union of India, the Delhi High Court held that reiterated the test of article 14 of the Indian Constitution that any distinction or classification be based on an intelligible differentia which is sought to achieve rational relation to the object is not unfair or unjust. The provision of Section 377 on its face was neutral but it unfairly targets the community, has resulted in that all gay men are considered as criminal. This led the Court to decriminalize the section in violation of article 14 of the Indian Constitution.

Further in Suresh Kumar Kaushal vs Naz Foundation the decision of the Delhi High Court. Was appealed in the Supreme Court. The Court held that section 377 is neutral and doesn’t target any particular group of a section of the society but criminalizes certain acts which if committed by a person irrespective of the age of consent will constitute an offence. To avoid the test of reasonable classification mentioned that the section is not against a particular group but people involved in such an unnatural offence.

In Navtej Singh Johar vs Union of India, petitioner argued that classification between natural and unnatural sex was not property defined anywhere thus section 377 of the Indian Penal Code is vague and arbitrary. The respondent argued that it is not against a particular community the section mentions the particular offence and its punishment. The Court, in this case, held that section 377 is discriminative against one section of the society this violative of Article 124 of the Indian Constitution making it unconstitutional.

Is reasonable classification a valid reason or an excuse to criminalize Section 377 of the Indian Penal Code

Valid Reasons

The right to equality is the basic feature of the Indian Constitution to qualify the test of valid classification; the differentiation was not made on proper grounds concerning Section 377 of the Indian Penal Code.
First No proper legislation passed to explain the difference between natural and unnatural offence.
Second: There was no reasonable ground to differentiate a particular group out of the whole section of society.
The reasoning that the section only highlights the punishment and the offence is baseless because it’s indirectly targeting a particular group.
The provision was not proportional to the object for which it was introduced.

Excuse

There have been various past instances where there is an overemphasis of the doctrine of reasonable classification which was done in this case.
The provision only mentions the offence and the punishment and doesn’t target a particular group.
The provision is neutral and not targeting a particular group.

Conclusion

Article 14 mentions that there should be equal treatment but two people must not always be treated equally. Differentiation can be made by the State but it should be on substantial grounds. The reasonable classification restricts the unlimited power of the State to make laws. The concept of reasonable classification has replaced it with the concept of protection against arbitrariness through interpretation in various cases which is more specific as compared to reasonable tests. Even after the establishment of the new test the doctrine of reasonable classification is still considered as a valid test in emphasis with the right to equality. Even after the landmark judgment of the Supreme Court, many communities residing in India weren’t satisfied with the government. This judgment came as a relief to the LGBTQ community still various amendments in the parliament regarding gay marriages, adoption procedures for gay couples they should also be treated like any other gender.