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Issue No.: 560 | February 2014
 

Section 377 (IPC) is Unacceptable in a Democracy

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THE LIBERAL POSITION

Section 377 of the Indian Penal Code (IPC) (Unnatural offences) Enacted by the British Colonial rulers in 1863 says:

"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 term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.”

The ambit of Section 377, which was devised to criminalize and prevent homosexual sex extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.

The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. It was revived in the next decade, by the Naz Foundation (India) Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter. Since nobody had been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. Naz Foundation appealed to the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit.

In May 2008, the case came up for hearing in the Delhi High Court. On 7 November 2008, the seven-year-old petition finished hearings. Eventually, in a historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150 year old section legalising consensual homosexual activities between adults. The essence of the section goes against the fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before the law.

The court stated that the judgment would hold until Parliament chose to amend the law. However, the judgment kept intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors.

A batch of appeals were filed with the Supreme Court, challenging the Delhi High Court judgment. On 27 March 2012, the Supreme Court reserved verdict on these. After initially opposing the judgment, the Attorney General G. E. Vahanvati decided not to file any appeal against the Delhi High Court’s verdict, stating, inter alia that this section was "imposed upon Indian society due to the moral views of the British rulers.”

On 11 December 2013, the Supreme Court of India ruled homosexuality to be a criminal offence setting aside the 2009 judgment given by the Delhi High Court. The bench of justices G. S. Singhvi and S. J. Mukhopadhaya however noted that the parliament should debate and decide on the matter. The bench also upheld the constitutional validity of Section 377 of the Indian Penal Code that makes anal sex a punishable offence. The central government has filed a review petition on 21 December 2013. In its review petition the Centre said: "The judgment ... is contrary to well established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.” The IPC, when enacted in 1860, was justified; but with the passage of time it had become arbitrary and unreasonable. Naz Foundation also filed a review petition against the Supreme Court order on Section 377.
 (Based on material in Wikepedia)

The Indian Committee for Cultural Freedom agrees with the People’s Union for Civil Liberties (PUCL) that the effect of the SC ruling has once again relegated LGBT persons to the status of ‘second class citizens’ because of their sexual orientation and reduced them to what the Delhi High Court evocatively referred to as "unapprehended felons”. ICCF supports the demand for the repeal of section 377 IPC before this parliament is prorogued.

 
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