The Section 377 of the Indian Penal Code (IPC) holds homosexuality against the order of the nature [or ‘deviate sexual intercourse’ as mentioned in Section 21.01(1), Texas Penal Code] and thus an unnatural offence.
The calls to decriminalize homosexuality in liberal societies were ignored by many countries for decades. A fresh view was adopted by the Delhi High Court in the Naz Foundation v. Government of NCT of Delhi, 160 (2009) DLT 277, which had declared Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, as violative of Articles 21, 14 and 15 of the Constitution. It had ruled that the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors (para 132).
Recently, however, the Supreme Court has adopted a quite divergent and orthodox view in Suresh Kumar Kaushal v. Naz Foundation and Ors., CA 10972 (2013) and held that Section 377 does not suffer from the vice of unconstitutionality and the declaration made by the Delhi High Court as legally unsustainable (para 54). The verdict is reviewed below from constitutional and jurisprudential perspectives:
The Supreme Court stated that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders (LGBTs) and in the last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377 IPC. Thus, it cannot be made a sound basis for declaring that the Section is ultra vires the provisions of Articles 14, 15 and 21 of the Constitution (para 43), the court observed. It is apt to recall here that even one person can constitute a class for the purpose of Article 14 according to ChiranjitLalChowdhury v. Union of India AIR 1951 SC 41. The SC opined that those who indulge in carnal intercourse against the order of nature (i.e. whether LGBTs or heterosexuals) constitute a separate class for the purpose of reasonable classification under Article 14 (para 42). However, under this blanket, LGBTs have not only been discriminated against violating Article 15(1) but also denied their very existence and, according to the Delhi High Court, viewed as criminals. Even for heterosexuals, this is a matter of privacy, which should not be interfered with.
Liberty enables a person to have his/her own idea of existence and of life and, protects him/her from unjustifiable intrusions into the private life. Following John Geddes Lawrence and Tyron Garner v. Texas 539 US 558 (2003), the Delhi High Court rightly evolved the right of sexual autonomy as part of the right to privacy by expanding the scope of the right to life and personal liberty guaranteed under Article 21 (51:4 JILI 513, 521, 2009). Sexual desires are indeed so private that those who have them may be unwilling to admit that they do, even to themselves (Trigg, 2005 at 108). Therefore, criminalising consensual sexual acts of adults in private amounts to invasion in privacy because there is no compelling interest and the case laws referred to by the apex court in paragraphs 45-47 contain a discourse on the right to privacy and dignity irrelevant in the context of Section 377.
Homosexuality is not a matter of one’s habits or addiction rather, that of one’s very preference. Therefore, to penalise any reflection of one’s preference amounts to not only rejecting one’s dignity but also his/her existence. The right to live with dignity emanates from the right to life as dignity reflects personal will and freedom of choice and action. The Delhi High Court rightly pointed that Section 377 denies a homosexual person the right to live life with dignity and to full personhood implicit in the notion of life under Article 21. It also criminalises his/her core identity solely on account of sexuality, the court had held. However, the Supreme Court did not give its justifying opinions on the issue and the case laws discussed on the issue of dignity and privacy were related to reproductive rights and privacy of patients, wholly irrelevant in this matter.
Morality consists of the rules governing human behaviour and forms a condition of existence of society (Friedmann, 1967 at 26) and broadly, the function of criminal law is to enforce morality (Davlin, 1965 at 179). Section 377, punishing unnatural offences, appears to have been legislated to enforce the then morality “prevalent there to be recognised” (Hart, 1962 at 176). The Supreme Court, in paragraph 10 of its judgment, observed that the Delhi High Court did not accept the argument that Section 377 should cover consensual sexual conduct on the ground of public morality but it did not make clear its stand on homosexuality and morality. Such an observation is in complete contradiction of SC’s own earlier ruling whereby it declared live-in relationships to be neither a sin nor an offence.
The impugned Section punishes carnal intercourse as against the order of nature. However, at the innermost, the sexual conduct of homosexuals is a reflection of their nature. They are also human beings but a different sexual orientation. It is not offensive unless forced on somebody or on a minor.
Bentham says that a consensual act never amounts to mischief and there is no ground to punish the same. Thus, overruling of the judgment of the Delhi High Court appears to be erroneous. The above discussion emphasises on the privacy and dignity of homosexuals and urges that existence of the personhood of homosexuals should be accepted and respected. If we cannot deny human rights to human beings, we cannot deny sexual autonomy to homosexuals. After all, sexual conduct is not only a means of sensual gratification but also a way to discover one’s self, according to author Paulo Coelho, and a way to unite with the divine, according to Osho.
Finally, an observation in the Report of the Committee on Homosexual Offences and Prostitution or Wolfenden Committee Report, 1957: “Unless a deliberate attempt is made by society acting through the agency of the law to equate this sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.”
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
