Section 377 – Unnatural Offences and its Constitutional Validity

Unnatural Offences

Section 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.

Thus, penile-anal, penile-oral or penile-animal penetration, howsoever, slight it be, constitutes carnal intercourse against the order of nature under section 377 of the IPC (Unnatural offences). In State of Kerala v Kundumkara Govindan[1], the Kerala High Court held that an act of inserting the male organ between the thighs of another amounts to unnatural offence.

In Naz Foundation v Government of NCT of Delhi[2], the constitutional validity of the section 377 was challenged in the Delhi High Court by Naz Foundation, a NGO. Naz contended that section 377, on account of covering consensual sexual intercourse between two adults in private, is violative of the fundamental rights guaranteed in Article 14, 15, 19 and 21 of the Constitution. It stressed that section 377, in essence, goes against the spirit of the right to personal liberty (which encompasses the right to privacy, the right to dignity, individual autonomy) and to equality before law ( prohibiting any classification based on irrational rationale ) guaranteed under Article 21 and Article 14 of the Constitution, respectively. Section 377, it argued, is violative of Article 15 as it criminalizes homosexual activity on the basis of more sexual orientation. Section 377, by prohibiting homosexuality, Naz asserted, infringes the basic freedoms guaranteed under Article 19(1)(a)(b)(c) as individual’s ability to make personal statement about his sexual preferences, right to associate or assemble and right to move freely (with gays) so as to engage in homosexual conduct is curtailed or restricted. Naz, therefore urged the High Court to, through judicial interpretation of section 377, decriminalize ‘unnatural’ sexual intercourse between two consenting adults in private, and to limit it only to non consensual penile non vaginal sexual intercourse and penile non vaginal sex involving minors.

The Union of India, represented by Ministry of Home Affairs and Ministry of Health & Family Welfare, resisted the claim but both the Ministries took contradictory stands. The Ministry of Home Affairs sought to justify the retention of section 377, while the Ministry of Health & Family Welfare, supporting claim of the Petitioner, stressed that the presence of section 377 in the statute book has hampered the HIV/AIDS prevention efforts, and that its deletion would help NGOs working among HIV/AIDS patients to fight against the killer-disease among homosexuals. The Ministry of Home Affairs justified the existence of the section in the Code on the ground of public health, public morality, public disapproval and social disgust of the act. Its decriminalization, the Ministry pressed, would be against the prevailing sexual mores in India. It contended that no right including fundamental rights can be absolute. The Constitution permits reasonable restrictions on the grounds of decency, morality, and public health.

After extensive examination of arguments and counter arguments of the parties, and the juristic opinions from home and abroad, the Delhi High Court accepted all the contentions of the Petitioner and declared section 377 partly ultra vires to the Constitution. It ruled that section 377, insofar it criminalizes consensual sexual acts of adults (i.e. persons of or above 18 years of age) in private is, being violative of articles 21, 14 and 15 of the Constitution, unconstitutional. It ruled that the provisions of section 377 will still continue to govern non consensual penile non vaginal sex and penile non vaginal sex involving minors.

However, some public spirited individuals and organizations, doubting constitutional propriety of this judgment, approached the Supreme Court urging it to restore section 377 as it stands originally. During the initial hearing of the matter in the Supreme Court, conflicting stand of the Attorney- General’s Office and the Union Government resurfaced. The former argued against the Naz Foundation dictum, while the Union Government, through a Cabinet decision, decided not to contest the matter.

In Suresh Kumar v Naz Foundation[3], the Supreme Court, after hearing equally forceful arguments for and against the retention of section 377 in the IPC, had overruled the Naz Foundation Dictum of the Delhi High Court and thereby upheld the constitutional validity of section 377 of the IPC. It ruled that section 377 does not offend any articles of the Constitution and hence doesn’t suffer from the vice of unconstitutionality.

There are two classes of people, those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature. The Supreme Court argued that the people falling in the latter category cannot claim that section 377 is unconstitutional and irrational as it does not criminalize a particular identity or sexual intercourse but merely indentifies what constitutes as carnal intercourse against the order of nature and provides punishment for the same. It merely regulates sexual conduct regardless of gender identity and sexual orientation. The Supreme Court also said that the Delhi High Court overlooked the fact that only a small fraction of the country’s population constitute lesbian, gays, bisexuals or transgender and only a very few people have been convicted under section 377. Thus the Supreme Court held that there is no sound basis for declaring section 377 unconstitutional.

The Supreme Court relied on a number of its earlier judgments which declared section 377 intra vires. It also expressed its displeasure over the fact that the Delhi High Court instead of referencing to these judgments, relied on foreign judicial opinions. It said that to in order to protect the so called LGBT rights, the Delhi High Court relied on judgments of other jurisdictions but forgot that even though they shed considerable light on these rights, they cannot be applied straightforwardly in India. The Supreme Court also reminded higher courts that they need to be reluctant in declaring a law invalid on basis on its unconstitutionality as there is already a presumption of constitutionality.

[1] (1969) Cr LJ 818 (Ker), p 823.

[2] (2010) Cri LJ 94 (Delhi), 160 (2009) DLT 277.

[3] AIR 2014 SC 563, (2014) Cr LJ 784 (SC), (2014) 1 SCC 1.

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