This article is written by Amrit Kaur, a student of Dr B.R. Ambedkar National Law University, RAI, Sonepat. The article talks about the sections which have been decriminalised in the Indian Penal Code.
The Indian Penal Code 1860 (IPC) is one of the most distinctive and outstanding Penal Law Codes, encompassing a variety of offences, their scope, nature and punishments. It is best left in the hands of the judiciary, legal practitioners, legal academicians and law students. The Indian Penal Code may be traced back to Jeremy Bentham, a well-known jurist on the subject of legal reform. The substantive law Code’s core premise is heavily inspired by British law, although aspects from the Napoleonic Code (1804) and the Louisiana Civil Code (1825) have also been derived. The Code is often regarded as the one which is pertinently designed to handle the present-day problems. It is an innovative code of all times.
In the year 1860, the Indian Penal Code was adopted in India. Amid cataclysmic social and political upheavals, it stands as a testament to the genius of Lord Macauly, who as President of the First Indian Law Commission which was established in 1834 stated about it, “Our principle is simply this- uniformity when you can have it; diversity when you must have it; but, in all cases, certainty.”
It is to be noted here that in terms of certainty, the Indian Penal Code serves as a paragon. It has been amended the least number of times throughout its 143-year history in the statutory book. Indeed, it is unusual to come across a judgment emphasizing the need of filling any gaps in the Penal Code, either owing to unclear language or otherwise.
In an uncivilized culture, there was no criminal law. Any individual might be attacked in his person or on his property at any moment by anyone. The concept of “a tooth for a tooth, an eye for an eye, a life for a life” was the precursor of criminal justice. As time passed, the injured individual agreed to take compensation rather than murdering his enemy. As a result, a sliding scale was developed to punish common offences, giving rise to antiquated criminal law.
Before the arrival of the British, the majority of Indian criminal law was Muhammadan law. Although the East India Company did not interfere with the criminal law of the country for the first few years of its administration but in 1772, during the administration of Warren Hastings, the Company for the first time interfered and henceforth until 1861, the British Government did modify the Mohammedan law from time to time. The Mohammedan law was the basis of criminal law except in the presidency towns. The age of Muslim criminal law administration in India lasted a long time and provided a wide terminology for the lexicon of Indian law.
The goal of IPC is to provide the country with a general penal code. It is divided into 23 chapters and contains 511 sections that provide a list of crimes as well as their definitions and penalties. The IPC has been modified quite a few times and is now complemented by other Acts. Furthermore, it has jurisdiction over the whole country of India.
In this article, however, the author focuses only on some of the sections of this Code which have been decriminalised over the years as per their suitability.
Decriminalized sections under the IPC
Many regulations created during the British Raj have been kept and preserved in India even after independence. But over time, many of the sections of the Indian Penal Code have become redundant, which therefore need to be amended or deleted, as suitable. Therefore in present times, several sections of the IPC stand decriminalised. These sections have been talked about as follows:
Section 377 of the Indian Penal Code was enacted almost a century and a half ago, in 1861, when India was still administered by the British. It was modelled after Britain’s 1533 ‘Buggery Act,’ and it criminalized “unnatural offences.”
According to the legislation, whosoever willingly engages in carnal intercourse against the order of nature with any man, woman or animal shall be punished with life imprisonment or with imprisonment of either description for a period which may extend to 10 years and shall also be liable to pay fine. As a result, Section 377 of the Indian Penal Code deals with ‘unnatural offences’. During the colonial period, Section 377, a provision to punish anyone who defies the “order of nature,” was inserted in the Indian Penal Code in 1860 as a response to the Sepoy Mutiny of 1857.
Naz Foundation v. State (NCT of Delhi), 2009
The Naz Foundation (India) Trust questioned the constitutionality of Article 377 under Articles 14, 15, 19 and 21 of the Indian Constitution before the Delhi High Court. Section 377, according to the foundation, represented an outdated conception and had no place in modern society. Furthermore, the foundation claimed that the police had weaponized the provision, impeding attempts to limit the spread of HIV/AIDS. The foundation highlighted an incident that occurred in Lucknow in 2001 in which HIV prevention workers were jailed for allegedly conspiring to commit an offence. The Naz Foundation also stated that the law has been abused in order to penalize consenting sexual activities in various instances.
In 2009, the Delhi High Court, therefore, held in this case that Section 377 cannot be used to penalize sex between two consenting adults since it violates the right to privacy and personal liberty as granted under Article 21 of the Constitution of India. The Delhi High Court also ruled Section 377 to be in contradiction to the Indian Constitution as it criminalises consensual sexual activities between adults of the same gender in private. The Court found that the classification and targeting of homosexuals violate the equal protection provision under Article 14 of the Constitution. The Court also held the Section to be violating Article 15 of the Constitution. As a result, the Court held Section 377 in violation of the Indian Constitution’s basic value of human dignity.
The Delhi High Court’s decision was later challenged in the Supreme Court by a number of organizations and individuals. They claimed that the right to privacy does not include the freedom to commit any crime; decriminalizing homosexuality would harm the institution of marriage and encourage young people to engage in homosexual behaviour.
Navtej Singh Johar & Ors. vs. Union of India
Navtej Singh Johar, a dancer who identified as a member of the LGBT community, filed a writ petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, sexual autonomy and the right to choose a sexual partner as part of the right to life guaranteed by Article 21 of the Indian Constitution. In addition, he sought that Section 377 of the Indian Penal Code be declared unconstitutional.
The petitioner further claimed that Section 377 was invalid under Article 14 of the Constitution (Right to Equality Before the Law) because it was ambiguous in that it did not define “carnal intercourse against the natural order”. The petitioner claimed that there was no intelligible differentia or reasonable categorization between natural and unnatural consensual sex. The petitioner also claimed that:
(a) Section 377 violated Article 15 of the Constitution (Protection against Discrimination) because it discriminated on the basis of a person’s sexual partner’s sex,
(b) Section 377 had a “chilling effect” on Article 19 (Freedom of Expression) because it rejected the right to express one’s sexual identity through speech and choice of a romantic partner, and,
(c) Section 377 infringed on LGBT people’s right to privacy by putting them in dread of being humiliated or ostracized because of “a specific choice or style of living.”
The five-judge Constitution Bench comprising CJ Dipak Misra, R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in the present case, therefore, held Section 377 of the Indian Penal Code (IPC) as unconstitutional insofar as it criminalised gay sex between consenting adults of the same gender. The Bench issued three opinions in addition to the leading judgment.
This verdict overruled the 2-Judge Supreme Court Bench decision in Suresh Kumar Koushal v. Naz Foundation,(2014), which upheld the constitutionality of Section 377 of IPC and had, in turn, overruled the judgment of a Division Bench of the Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009.
While considering the decision in the Suresh Kumar Koushal case, the Supreme Court observed that it relied on a small minority rationale to deny the LGBT community its fundamental rights and that it did not distinguish between consensual and non-consensual sexual activities between adults. In this regard, the Court stated that a distinction must be drawn between consensual adult private relationships, whether heterosexual or homosexual in nature. Furthermore, the Court stated that adult consensual relationships could not be classed alongside sodomy, bestiality or non-consensual relationships.
The Court stated that a “subjective notion of public or societal morality that discriminates against LGBT persons and subjects them to criminal sanction simply on the basis of an innate characteristic runs counter to the concept of constitutional morality and cannot form the basis of a legitimate State interest.” “Any restriction on the right to privacy must comply with the conditions of legality, presence of a legitimate state interest and proportionality,” the Court stated.
Therefore, the Navtej Singh Johar verdict is considered a watershed moment in India’s march towards gender equality and social justice. The decision not only liberates the LGBTQ community from the shackles of gender discrimination but also grants them the freedom of individuality, the right to privacy, life and liberty and the freedom of choice, as well as the right to freedom of self-expression.
The ruling may be seen as a typical illustration of how the Indian judiciary responds to injustices endured by the prejudiced strata of society over and again.
It is, however, to be noted here that the Section dealt with all unnatural offences. This means that activities like bestiality will continue to be punishable under the statute.
The expression “adultery” refers to sexual intercourse with someone other than one’s spouse. Generally, adultery is defined as sexual intercourse with another man’s wife. Therefore, adultery is defined as any sort of consensual sexual relationship between a married person and someone who is not their spouse.
Section 497 of the Indian Penal Code, part of the British enacted Penal Code of 1860 criminalized adultery, but only “asymmetrically”. This is because according to the Section, only the male and not the woman, who committed adultery could be punished. Furthermore, only the husband could initiate an adultery suit, nevertheless, he would have no cause of action if he had “consented” or “connived” in the adulterous action.
Joseph Shine v. Union of India, (2018)
In this case, the validity of Section 497 of the Indian Penal Code was challenged by a hotelier, Joseph Shine. The petition’s main goal was to protect Indian men from being punished by vengeful women or their spouses for extramarital affairs. In Kerala, a close friend of the petitioner committed suicide after his female colleague maliciously accused him of rape. The petitioner claimed Section 497 to be an appalling example of gender inequality, authority imperialism and masculine patriotism. The petitioner also claimed that in today’s culture, the conventional context in which Section 497 was designed is no longer appropriate and hence needs to be struck down.
Thus, on September 27, 2018, a five-judge Bench in this landmark case, unanimously declared Section 497 of the Indian Penal Code (IPC) and Section 198(2) of the Criminal Procedure Code, 1973 as unconstitutional and thus decriminalized adultery.
As stated earlier, Section 497 of the Indian Penal Code of 1860 dealt with adultery, while Section 198 of the Criminal Procedure Code of 1973 deals with prosecution for marriage-related offences.
The judgement decriminalised Section 497 of the Indian Penal Code on the grounds that it violated Articles 14, 15 and 21 of the Constitution of India. The Court ruled that the Section is an outdated and paternalistic statute that violates a woman’s autonomy and dignity. Section 198 of the Code of Criminal Procedure was also read down by the bench. According to Section 198(2) of the Criminal Procedure Code, only a husband may press charges for Section 497 related offences. Therefore, four distinct concurring opinions were issued by the Bench. Chief Justice Misra delivered an opinion on behalf of himself and Justice Khanwilkar. Concurring opinions were written by Justices Nariman, Chandrachud and Malhotra. The Bench, thereby, reversed its previous decisions in the following cases. This is because in the following cases, the courts had earlier affirmed the constitutionality of Section 497 of IPC, which today stands decriminalised.
Smt. Sowmithri Vishnu v. Union Of India & Anr, 1985
In this case, a petition under Article 32 was brought to challenge the constitutionality of Section 497 of the IPC. The petitioner argued that the Section is discriminatory since it did not give a woman the right to prosecute the woman with whom her husband has committed adultery. The constitutionality of the statute was however affirmed by the three-judge bench in this case, which stated that broadening the scope of the offence should be done by the legislature rather than the courts. Since the crime of breaking a family is no less serious than breaking a house, the punishment was held to be appropriate. The Court agreed that only men are capable of committing such a crime.
V. Revathi vs Union Of India & Ors, 1988
In this case, the Court affirmed the constitutional legality of Section 497 read with Section 198, noting that it prevents both the wife and the husband from penalizing each other for adultery, making it non-discriminatory. According to the Court, it only punishes an outsider who attempts to desecrate marriage’s sacredness. As a result, it is discrimination in the “favour” rather than “against” the wife.
Yusuf Abdul Aziz v. The State Of Bombay, 1954
The legality of Section 497 was again challenged in this case on the grounds that it contradicts Articles 14 and 15 of the Indian Constitution by stating that a wife cannot be a perpetrator or an abettor. However, the legitimacy of the aforementioned provision was upheld by a three-judge bench since it was stated that this Section is a unique provision designed for women and is protected by Article 15(3) of the Constitution and also because Article 14 is a general rule that must be interpreted in conjunction with other Articles.
Section 309 : a section with reduced scope
According to Section 309 of the Indian Penal Code, attempting suicide is a criminal act and thus, the survivor of attempted suicide can be punished appropriately under the Section. The legislation, enacted by the British in the nineteenth century, represented the mentality of that period when murdering or attempting to kill oneself was deemed a crime both against the State and against the religion.
However, the constitutional legitimacy of this Section was heavily contested because it infringed the right to life given by Article 21 of the Indian Constitution, which many said included the right of individuals to terminate their lives.
Maruti Shripati Dubal v. State of Maharashtra, 1986
In this case, the petitioner was a police constable. In 1981, he was injured in a road accident. He recovered from the physical injuries, but he got psychologically sick as a result of it. The petitioner was even undergoing psychiatric therapy after being diagnosed with giddiness (fright), poor sleep and appetite, anxiety, confusion and other symptoms. He was later diagnosed with schizophrenia. He, then, was subjected to electric shock treatment as schizophrenia impairs the patient’s capacity to think. Soon the family’s income declined, Dubal’s wife sought another work and was later promised a hawker’s license. However, due to stumbling blocks in bureaucracy and its procedures, she was unable to obtain the license. Tired by his life’s aggravating events, the constable poured kerosene on himself and attempted to ignite a fire. Fortunately, he was stopped by police and thereafter charged under Section 309 for attempting suicide and imprisoned, though he was later released. According to the petitioner, he had no recollection of what occurred. To him, the effort to start a fire was a distant memory. He stated that the incident occurred while his wife and children were away and he had nothing else to concentrate on.
The Bombay High Court, in this case, therefore ruled that Section 309 of the IPC is ultra vires of the Indian Constitution. Furthermore, the Court held Section 309 of the IPC to be in violation of Articles 14, 19, and 21 of the Indian Constitution. The Court stated that dealing with the facts of this case is irrelevant since the petitioner’s prosecution is unjustified. As a result, the petitioner’s pending prosecution was dismissed, as were any charges under Section 309 of the IPC pending in any of the state’s courts. The Court further noted that when the freedom to stay silent coexists with the freedom of speech and expression, the right to die also coexists with the right to live, the wish to die is not abnormal, and so the right to die also exists.
Then, in 1987, the Andhra Pradesh High Court ruling in Chenna Jagadeeswar v. State of Andhra Pradesh, 1987 contradicted the preceding judgement. In this case, again the constitutionality of Section 309 was challenged on the grounds that it violated Articles 14 and 21 of the Constitution. But in this case, it was determined that the aforementioned Section was not unlawful because it did not violate any of these articles.
P. Rathinam v. Union of India, 1994
In this case, P. Rathinam and Nagbhushan Patnaik filed petitions challenging the constitutionality of Section 309 of the Indian Penal Code as Section 309 punished anybody who attempts to commit suicide with simple imprisonment up to a year. The Supreme Court drew a parallel between the other fundamental rights: just as the right to free speech under Article 19 provides the right to speech but also includes the right not to speak, the right to life under Article 21 provides the right to live but also includes the right not to live. As a result, Section 309 was declared invalid.
The division bench of the Supreme Court in this case thus overturned the judgement of the Andhra Pradesh High Court in the case of Chenna Jagesdeeswar v. State of Andhra Pradesh, 1987. The Court further stated that the law is cruel and inhuman since it punishes a person who has previously endured pain and attempted suicide as a result of that agony.
The Court further stated that the term “life” in Article 21 refers to the right to live with human dignity rather than mere animal existence. As a result, the right to live entails the right not to live a forced existence. A person’s right to live cannot be pushed to his detriment or dislike. Furthermore, the Court stated that suicide is not a violation of public policy. When an offence is committed, the offender is punished in order to protect society from the depredations of a dangerous individual. However, in the case of suicide, the person is not causing harm to others, thus the subject of safeguarding society does not arise.
Finally, the Court added that no one has a monopoly right over human life. Such power can only be claimed by God. As a result, the argument that committing suicide undermines the State’s monopolistic authority to take life falls flat.
Smt. Gian Kaur v. State of Punjab, 1996
The appellants, in this case, Gian Kaur and her husband Harbans Singh had committed the offence of abetting the suicide of their daughter-in-law, Kulwant Kaur. The Trial Court convicted them both under Section 306 of the Indian Penal Code for their actions. They were sentenced to rigorous imprisonment for a term of six years each, with a fine of Rs. 2,000/-. The Court also pronounced that if the sum would not be paid by them, further rigorous imprisonment for nine months was to be imposed. But later, the appellants filed an appeal with the High Court, which subsequently upheld the lower Court’s ruling, confirming the appellants’ conviction. However, Gian Kaur’s sentence was reduced from six years to three years in rigorous imprisonment. The appellants then went to the Supreme Court and filed a Special Leave Petition to overturn their guilty sentence under Section 306 of the IPC.
The five-judge Constitution Bench ruled that “right to life” under Article 21 of the Indian Constitution does not encompass the “right to die” or “right to be killed.” The Supreme Court maintained that the “right to life ” encompasses the right to a dignified existence until death, including a dignified death process and so includes the right of a dying man to die with dignity while his life is ebbing away.
The Court also held that the right to life is a natural right but suicide is an unnatural termination of life, and hence the latter is incompatible with the former. As a result, the Court affirmed the constitutionality of the Section.
Therefore, today, the Section continues to exist in the Indian Penal Code.
However, the Mental Healthcare Act (MHCA), 2017, which came into effect in July 2018, considerably restricts the scope for the application of Section 309 of the IPC and makes suicide attempts punishable only as an exception. As a result, it can be said that India has decriminalized suicide attempts and considers the problem as one that requires therapy rather than punishment. It is to be noted here that Section 115 of the Mental Healthcare Act deals with the same. Under the Act, suicide attempters are presumed to have significant stress, according to Section 115 of the Mental Healthcare Act (MHCA), 2017. According to the Section, the survivor should not be penalized and the government should have a duty to offer care, treatment and rehabilitation to decrease the likelihood of recurrence. Decriminalization may encourage people to seek treatment openly, enhance epidemiological statistics and improve planning and resource allocation.
The Indian Penal Code of 1860 is an archaic Code and many of its provisions might not suit the changing times of today and hence, such crimes in the Penal Code either need to be amended or decriminalised to suit the needs of the present evolving society. The three sections of the IPC, which have been decriminalised are talked about above and there is a hope that many more will be decriminalised or amended to suit the present evolving social conditions of our country.
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