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Whether Section 377 of IPC Constitutionally Valid

Written by: Jagruti Dekavadiya - 2nd year student of B.A.LL.B. (Hons.), Nirma University Institute of Law, Ahmedabad
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It is humbly submitted that the Part III of the constitution primarily carries the common theme of human right. The international conventions and the principles of natural justice also focuses on the aspect of right to life with the full of dignity and liberty. The fundamental rights are basic rights of the people. They are considered as basic rights to live a perfect life. Moreover Article 13 (2) says that “The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”[1] So, according to the constitutional provisions, Section 377 violates number of fundamental rights of the homosexual people.

a) Sec. 377 violates Article 14 of the Constitute of India

Article 14 of the Indian Constitution provides that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”[2]

Article 14 also focuses on the doctrine of intelligible differentia, according to which there should be clear nexus between the enacted provisions or act and its objective as for what purpose they have been enacted. The same makes it clear that a law enacted by legislature must be clear and must be rational. The supreme has held that a statute is void for vagueness if its prohibitions are not clearly defined. The rationale for this is that the provisions enacted should be clear so that persons affected know the true intention. [3]

Further, the Supreme Court has held that where a law does not offer a clear construction and the persons applying it are in a boundless sea of uncertainties and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution. [4].

Moreover, Section 377, it punishes “carnal intercourse against the order of nature.” However, the expression is not defined. Nor does section 377 provide any indication as to what acts are comes under the ambit of it. Courts have interpreted section 377 to cover not only non-penile-vaginal sex but also to include imitative sex and acts that amount to sexual perversity. The inconsistency and irregularities has been followed over a years as to what Sec. 377 contains and it is not par with the present globalised world and in that for developing country like India as every citizen want to maintain its liberty and wants to be an Individual first.

Therefore, Section 377 is vague and does not clearly define its prohibitions. Such vagueness leads to arbitrary application of section 377 against sexuality minorities. Hence, section 377 should be held void for its vagueness and attendant arbitrariness.

Further, Section 377 creates an arbitrary and unreasonable classification between penile-vaginal and penile-non-vaginal sexual acts in the name of procreative sex and non-procreative sex and hence violative of Article 14's guarantee of equal protection before and under the law.

By its very nature, sexual acts engaged in by gay men, being penile-non-vaginal, are non-procreative. Therefore, section 377 targets predominantly sexual acts engaged in by homosexuals. In so doing, it targets a group of persons, mainly homosexual men, based on their sexual preferences which are necessarily of a non-procreative nature. At this point of time in the fastest world in era of technology it is very important to note that even the gay couple can have procreation with the IVF technology which is rampant in India also.

The purpose of Article 14’s equal protection clause is to offer redress to vulnerable groups assailed by discriminatory practices. Section 377’s prohibition of non-procreative sexual acts criminalizes predominantly homosexual sexual relations and is propelled by a prejudicial and irrational notion of sex. It thus violates Article 14 because it disproportionately affects gay men.

Indeed, vulnerable minorities require protection from prejudice that can only be done by judicial decision, in the absence of any special legislative work.[5]

(b) Sec. 377 of IPC, 1860 is in violation of Art. 15 of the Constitution of India.

Article 15 (1) of the Indian Constitution provides that, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”[6]

The expression “sex” is fluid and is not a static concept. It cannot be restricted to only the biological male and female sex. It is not an essential condition that the law expressly makes the prohibited ground for the basis of classification. As held by the Supreme Court, “The Court’s are always had to interpret any law by the way of 'schematic and teleological' method of interpretation. All it means is that the judges do not go by the literal meaning of the words or by the grammatical structure of the sentence. They go by the design of purpose which lies behind it.”[7]

Hence, in present scenario the term “Sex” has a wider meaning and it includes sexual orientation as well, which includes homosexual people. The prohibition of discrimination on the ground of sex is intended to prohibit the attachment of standard behavioural pattern to gender. The purpose underlying the fundamental right against sex discrimination is to prevent behaviour that treats people differently for reason of not being in conformity with generalizations concerning “normal” gender roles.

In the present case, section 377 criminalizes the acts of homosexual people. Though facially neutral, the primary object and the direct and inevitable effect is the prohibition of sexual acts between homosexual based on their sexual orientation. It is an established position of law that if the effect of a State action is to infringe a fundamental right and that effect is brought about by a distinction based on a prohibited ground (e.g. sex, race, etc), it would constitute discrimination on the prohibited ground, however laudable the object of the State action may be. [[8]].

In the case of the Punjab Province v. Daulat Singh[9], the SC held that, “It is enough for a law to be struck down as being discriminatory on a prohibited ground that the law operates so that its effect in some cases is that some persons are discriminated only on the basis of a prohibited ground.”

In the present case, the effect of section 377 is that it disproportionately impacts homosexuals on the basis of their sexual orientation. This was clearly foreseen and intended by the Legislature to so impact. Therefore, section 377 constitutes discrimination on the ground of sexual orientation and therefore on the ground of sex under Article 15, despite being couched in facially neutral language. Hence, the said section needs to be held ultra vires as it violates article 15 of the Constitution of India.

(c) Sec. 377 of IPC, 1860 violates Art.21 of the Constitution of India

Article 21, Indian Constitution, conforms on every person the fundamental right to life and person liberty which has became an inexhaustible source for many other lives.[10] These rights are as much available to citizen as to foreigner.[11] And this article has been given paramount position by the hon’ble Supreme Court. Homosexual people are also included under article 21 as they are also human being.

The Supreme Court in the case of Kharak singh v. State of Uttar Pradesh[12] held that right to life is most fundamental of all. The word life in the article 21 does not confine itself mere animal existence, but the word life includes wider meaning than mere an animal existence in the society. The inhabitation against its deprivation extended to all those limbs and faculties by life is enjoyed. The provision also equally prohibits the mutilation of the body by amputating off any part of the body, or any other organ through which the soul communicates with outer world. And sexual orientation not being outer part of the body but if a person deprived of being having sexual orientation this also amount to mutilation of the body.

In Bandhua Mukti Morcha V. Union of India[13] the honorable court held:
“There are minimum human requirements which exist in order to enable a person to live with human dignity, and no state has right to take away action which will deprive a person of the enjoyment of this basic essential”[14]

The basic essentials of a person’s life can be named as follows:
· Privacy
· Human Dignity
· Health

Right to Privacy

The privacy is that “area of a man’s life which in any given circumstances a reasonable man with an understanding of the legitimate needs of the community would think it wrong to invade”

Although Indian constitution like America does not guarantee right to privacy explicitly, yet we may say that right to privacy is implicit in Article 21 of the Constitution. A question arose for the first time in Kharak Singh v. State of U.P.[15] whether right to privacy is included in the right to personal liberty. Justice Subba Rao, speaking for minority, held that right to privacy though not expressly declared in our constitution, is an essential ingredient of the personal liberty.

In the case of R. Rajagopalan v. State of Tamil Nadu[16] , the Supreme Court held that it is right to be let alone and a citizen has the right to safeguard the privacy of his own, his family, marriage, protection, motherhood, child-bearing and education among other matter. No one can punish anything concerning the above matter without his consent whether truthful or otherwise and whether laudatory or critical.

As far as this matter is concerned, the impugned section clearly violates the right to privacy guaranteed by the Constitution as it peeps into the houses of people without their consent and still punishes them for their private matters.

Generally, criminal provisions are justified on the basis that they prevent harm. In the realm of sex, whether or not harm is caused is dependent on consent. Where consent is given, a person is not harmed and the conduct falls back within the realm of personal autonomy that does not require policing by the State. Only where there is no consent is criminal sanction justified.

It is also recognized that at the core of the right to privacy are those matters related to one’s private life and intimate relationships. This sphere of private intimacy and autonomy must allow persons to develop human relationships without interference from the outside community or from the State. The right to privacy is thus premised on the proposition that there exists a zone of privacy created by various fundamental rights into which the State cannot intrude.
It is submitted that sexual intimacies between individuals, whether homosexual or heterosexual, fall within the protected zone of privacy. Section 377, by criminalizing certain consensual sexual acts, violates the right to privacy.

Hence, the impugned section clearly violates right to privacy of the people concerned and hence violates right to life and personal liberty guaranteed under Constitution of India.

Human Dignity

The case law also recognizes that the right to privacy is derived from, and intimately related to, the right of each person to dignity. In Gobind v. State of Madhya Pradesh[17] the honorable Supreme Court has held: “Privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior”.

Dignity, then, is concerned with the rights of an individual, and is linked to personal self-realization and autonomy. If the right to privacy derives from a respect for human dignity, it must also be an individualistic right, accruing to a person wherever he may be.

In this matter, section 377 of IPC affects dignity of a man as it exposes a person of his sexual orientation and also punishes him and sends him to prison which violates his right to live a dignified life.

The Supreme Court has held that “every act that offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights.”[18]
In the present case, section 377, by criminalizing private, consensual sex between adults, offends against and impairs the expression of the human self of sexuality, more particularly men who have sex with men, and thus violates their right to live with dignity.

Further, it does not stand the test of other fundamental rights. As has been shown above, section 377 is not reasonable, fair or just law according to conditions of article 14, 15 (1)

Right to Health

These gay populations are mostly reluctant to reveal same sex behaviour due to the fear of law enforcement agencies, keeping a large section invisible and unreachable and pushing the infection underground, making it difficult for Health Ministry to access them. Officials of UNAIDS say there is no data on the gay population in India as even collecting such information is illegal under Section 377.[19] It gives clear idea of problem created by the impugned section that because of this section, even UN officials are not able to prevent AIDS in India.

As said in affidavit filed by NACO in NAZ Foundation v. Union of India which is a sub-judice matter, that “…….the enforcement of section 377 of IPC can adversely contribute to pushing the infection underground, make risky sexual practices go unnoticed and unaddressed. The fear of harassment by law enforcement agencies leads to sex being hurried, leaving partners without the option to consider or negotiate safer sex practices. As MSM groups lack ''safe place'' and utilize public places such as railway stations etc, they become vulnerable to harassment and abuse by the police. The hidden nature of MSM groups further leads to poor access to condom, healthcare services and safe sex information. This constantly inhibits/impedes interventions under the National AIDS Control Programme aimed at preventing spread of HIV/AIDS by promoting safe sexual practices……..”[20]

Thus, because of the existence of Section 377 of IPC, HIV is spreading too much and it can be out of control if necessary steps are not taken within few months. Spreading of HIV makes life of every people miserable and threatened. Hence, the impugned section should be repealed for the betterment of health of the people.

Thus, Sec. 377 violates the Basic Features of the Constitution of India.

Section 377 of IPC denies the objectives enshrined in the preamble namely: Justice, Liberty and Equality to homosexual people. These objectives constitute the Basic Feature of the Constitution.[21] Further, it denies equality and equal protection and makes inequality and hence it is clear violation of Basic Feature of the Constitution and hence liable to be interfered with by the court.[22]
[1] P. M. Bakshi, Constitution of India; Universal Law Publishing Co. Pvt. Ltd. (2003), pp. 13.
[2] P. M. Bakshi, Constitution of India; Universal Law Publishing Co. Pvt. Ltd. (2003), pp. 16.
[3] Kartar Singh v. State of Punjab (1994) 3 SCC 569.
[4] K. A. Abbas v. Union of India, AIR 1971 SC 481.
[5] Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
[6] P. M. Bakshi, Constitution of India; Universal Law Publishing Co. Pvt. Ltd. (2003), pp. 26.
[7] Fuzlunbi v. K. Khader Vali, AIR 1980 SC 1730.
[8] State of Bombay v. Bombay Education Society, [1955] SCR 568.
[9] AIR 1946 PC 66.
[10] Bhagvati, J. in Maneka Ganghi v. Unioun of India, AIR 1978 SC 597, pp. 620.
[11] National Human Right Commission v. State of Arunachal Pradesh, (1996) 1 SCC 742.
[12] AIR 1963 SC 1295.
[13] AIR 1984 SC 802.
[14] ibid, at pp. 811.
[15] AIR 1963 SC 1295
[16] (1994) 6 SCC 632.
[17] (1975) 2 SCC 148, at page 156, para 22
[18] Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608, at page 619, para 8
[19] Times of India, 17 September 2006
[20] Affidavit by M.L.SONI, Under Secretary to the Government of India, National AIDS Control Organization, Ministry of Health and Family Welfare
[21] Durga Das Basu, Shorter Constitution of India, Wadhwa And Co. (2006); pp. 1651
[22] Durga Das Basu, Shorter Constitution of India, Wadhwa And Co. (2006); pp. 1650

The author can be reached at: / ph: +079-26463858
Added Date: 11 Sep 2009

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