Vous êtes sur la page 1sur 17

Lovely Professional University.

Punjab(INDIA)

Review Paper on
Section377 of Indian Penal Code
Constitutional law II (LAW-126)
Submitted to Madam Neeru Mittal
BY-Shivam Singh
(Reg: -11611419)
(Section: -L1604/B31)

Index
1. Introduction
2. Statement of problem
3. Research methodology
3.1. Aim and objectives
3.2. Scope and Limitations of the paper
3.3. Method of writing
3.4. Hypothesis
3.5. Research Questions
4. Legal history
5. Global trends
6. Laws involved
7. Case analysis of Naz Foundation V. Gov. of NCT and others (WP(C)
No.7455/2001) Date of
decision: 2nd July, 2009
7.1. Judgement of the case
8. Law commission on Section 377
9. Conclusion
10. Bibliography

1. INTRODUCTION
Although the civil rights movement has gone to the extent to include a
greater part of the world, but there are only few organizations whose major
aim is to fight for the rights of the Homosexuals.
The LGBT (Lesbian-Gay-Bisexual-Transgender) activism has raised the issue
of sexuality and, in particular, alternative sexuality, and argues for its
'normalcy'. The state, on the other hand, has taken exception to such
democratization of 'desire' and has tried to 'discipline' it.
The present era of society is becoming much deeper and democratizing
which earlier was moreover privileged to a private sphere which now is
becoming more open for debate and discussion. Also, has been a drastic
development in the democratization in the sphere of desire. Which
significantly cant be left un-noticed by the larger sect of society.
This review examines the provision in Penal Code of India that criminalized
private consensual sex between adults. Law had led to serious discrimination
against homosexual people.
Suffering from frequent beatings and blackmail attempts by police and
neglection from society.
NGOs working with sexual minorities have also been harassed charged
under Section 377, by stigmatizing homosexuality and threatening gay.
After an innovative, sustained, mass media campaign by activists
coalition brought together sexuality and LGBT who were previously
marginalized, with groups working in areas such as children's feminist
groups, showing that support for non-discrimination towards sexual
broad-based.
Further legal and social changes are needed for LGBT individuals
acceptance and equality within.
It is the matter of great concern for the worlds biggest democracy, not
only for the LGBT (Lesbian, Gay, Bisexual, Transgender) people but also
for the whole society because it is the question of validity and
protection of fundamental rights which can be referred as the
structural base of democratic society and justice.
There is a need to eliminate section 377 of the Indian Penal Code as it is
clearly violative of Articles 14, 15, 19 & 21 and its sub sections guaranteed
as Fundamental Right in The Constitution of India.

2. Statement of Problems

There are significantly many major problems which are discussed below:
1.Treatment of the rights of homosexual people, not just to engage in
consensual sexual intercourse in private, but also to a life of dignity free from
State discrimination and intrusion
2.Need to recognize and work for the betterment of LGBT (Lesbian, Gay,
Bisexual, Transgender) section of the society.
3.The current family laws need to be modified in order to be incorporate with
the LGBT section.
4.LGBT are considered as against the order of the nature under Section 377
of IPC.
5.Section 377 of IPC is violative of fundamental rights stated in 3rd part of
the constitution.

3. Research Methodology
3.1. Aim and Object of the Paper:
The aim and object of this research paper is to better understand the
working and interpretation of Section 377 of the Indian Penal code and in
doing so analyze the realities of the failure of this section over the years and
the changes to be able to reconcile the legislative intent with the politico-
social reality. An attempt will be made by the researcher to evaluate whether
or not the section 377 of IPC is violative of the part 3 of the constitution of
India. The section 377 of IPC penalizes the so called unnatural carnal
intercourse between consented individuals.

This report tends to hold the following objectives:


1.To test the validity of section 377 of IPC with respect to part 3 of the Indian
Constitution.
2.To check whether the section of LGBT comes under the ambit of section
377 of IPC.
3.To check the jurisprudential basis of section 377 of IPC.

3.2. Scope and Limitation of the Paper:


The scope of this paper extends to studying articles 14, 15, 19 & 21 with
respect to section 377 of IPC and supporting legislations have evolved and
the purposes it served. This paper gives a broad overview of the existence of
LGBT in India, the role played by civil society, judiciary and the legislature to
try and redress the problem as well as analyses the reasons for the failure or
lack of political social and judicial will in order to work for the betterment of
this sexual minority. The paper seeks to cull out defining characteristics and
purposes behind the use of this section as a means of addressing the
problem as well as a source of power within the hierarchical structure of
political society .The limitations of the paper are that apart from the broad
overview, the researcher has sought to narrow the scope by studying a few
key instances, in order to give a more comprehensive feel of the practical
reality of section 377, by studying a few key cases which analyze the
loopholes and the reality of discrimination with LGBT people in its various
manifest forms in India.

3.3. Method of Writing:


This research paper has been written using both descriptive and analytical
methods. However, the approach adopted in using both these methods has
been to critique the information utilized to the extent possible. The
descriptive mode of writing has been adopted to discuss the intent of
repealing section 377 in the Constitution and the analytical mode of writing
has been employed in the analysis of the reasons and rationale behind the
construction and legal and political interpretation and interplay while utilizing
the said section and subsequent legislations.
3.4. Hypothesis:
Section 377 is somewhat like a double-edged sword. While on one hand, it
denies individuals an essential fundamental right, on the other, some of its
clauses are crucial to the society and, hence, cannot be ignored. With the
raging debate to scrap Section 377, it has become all the more important to
review it carefully. Perhaps then we might realize that the need of the hour is
to amend Section 377 as opposed to entirely repealing it. Whether the
section 377 of IPC is constitutionally void as when it comes to the
fundamental human rights it is clearly violative of the articles 14, 15, 19 &
21 of the Indian constitution as when it comes to penalize the carnal
intercourse which is done in private with the consent of both the individuals.
As it has to be decided that what is of more importance, the base of the
constitution which is the fundamental rights or the section 377 of IPC.
Clearly, we can see that section 377 is invalid as said according to article 13
of Indian constitution.

3.5. Researchable Questions.


The following questions have been raised by the researcher during the
course of this research paper:
1. How an act done in private between two consenting adults can be
proved without hindering right to privacy?
2. Is the act done in private between two consenting adults is the matter
of state as doing the act discretion of the person. Is the interference of
state is violative of Article 21?
3. What is the jurisprudential source of this section?

4. Legal history

As part of Queen Mary Is restoration of Roman Catholicism in 1553,


the Parliament of England expelled the offence of buggery, and
returned it to the control of Christian religious law. Mary was, however,
succeeded in 1558 by her Protestant half-sister Queen Elizabeth I. In
1562, Parliament revived the felony of buggery in English criminal
law
Sithence which Repeal so had and made [in 1553], divers evil-disposed
Persons have been the bolder to commit the said most horrible and
detestable Vice of Buggery ... to the high Displeasure of Almighty God ...
Be it enacted ... That the said Statute [of 1533] ... shall ... be revived, and
from thenceforth shall stand, remain and be in full Force, Strength and Effect
for ever, ... as the same Statute was at the Day of the Death of the said late
King Henry the Eighth ...
It was this Act of 1562, making buggery a criminal offence
punishable by death, that was exported, directly or indirectly, to as
many parts of the British Empire as possible. In 1828, the 1562 offence
was replaced, for England and for all parts of India in which British
criminal courts had jurisdiction, by a new version, with identical
wording and an identical death penalty for England and India:
every Person convicted of the abominable Crime of Buggery, committed
either with Mankind or with any Animal, shall suffer Death as a Felon.
4. Whether or not any man in India was actually convicted of buggery and
sentenced to death, between 1828 and the entry into force of the Indian
Penal Code on January 1, 1862, this criminal offence applied, at least in
theory, to:
all Persons and all Places ... over whom or which the Criminal Jurisdiction of
any of His Majestys Courts of Justice erected or to be erected within the
British Territories under the Government of the United Company of
Merchants of England trading to the East Indies does or shall hereafter
extend.
5. Global Trends

5. The first decision of an international human rights tribunal requiring


decriminalization was delivered 30 years ago. In Dudgeon v., United
Kingdom (October 22, 1981),82 the European Court of Human Rights
ruled that the unamended offences of buggery and gross indecency,
found in section 61 of the Offences against the Person Act, 1861 and
section 11 of the Criminal Law Amendment Act 1885 (both Acts still
applied in Northern Ireland), violated the right to respect for private life in
Art. 8 of the European Convention on Human Rights. The Court made it
clear that no criminal prosecution or conviction was necessary to give
Jeffrey Dudgeon standing to challenge these criminal offences:
the maintenance in force of the impugned legislation constitutes a
continuing interference with the applicants right to respect for his private
life (which includes his sexual life) within the meaning of Art. 8(1) ... the very
existence of this legislation continuously and directly affects his private
life ... : either he respects the law and refrains from engaging even in
private with consenting male partners - in prohibited sexual acts to which he
is disposed by reason of his homosexual tendencies, or he commits such
acts and thereby becomes liable to criminal prosecution.

6. Laws Involved
Section 377 in The Indian Penal Code 1860
377. Unnatural offences. Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be
punished with 1[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.
Explanation. Penetration is sufficient to constitute the carnal intercourse
necessary to the offence described in this section.
Article 13 in The Constitution of India 1949
13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) 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
(3) In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes laws
passed or made by Legislature or other competent authority in the territory
of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution
made under Article 368 Right of Equality

Article 14 in The Constitution of India 1949


14. Equality before law The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India
Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth

Article 15 in The Constitution of India 1949


15. Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth
(1) The State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of
birth or any of them, be subject to any disability, liability, restriction or
condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public
entertainment; or
(b) the use of wells, tanks, bathing Ghats, roads and places of public resort
maintained wholly or partly out of State funds or dedicated to the use of the
general public
(3) Nothing in this article shall prevent the State from making any special
provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the
State from making any special provision for the advancement of any socially
and educationally backward classes of citizens or for the Scheduled Castes
and the Scheduled Tribes
Article 19 in The Constitution of India 1949
19. Protection of certain rights regarding freedom of speech etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practice any profession, or to carry on any occupation, trade or
business
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the
said sub clause in the interests of the sovereignty and integrity of India, the
security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or
incitement to an offence
(3) Nothing in sub clause (b) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of the sovereignty and integrity of India or
public order, reasonable restrictions on the exercise of the right conferred by
the said sub clause
(4) Nothing in sub clause (c) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of the sovereignty and integrity of India or
public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub clause
(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State
from making any law imposing, reasonable restrictions on the exercise of any
of the rights conferred by the said sub clauses either in the interests of the
general public or for the protection of the interests of any Scheduled Tribe
(6) Nothing in sub clause (g) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interests of the general public, reasonable
restrictions on the exercise of the right conferred by the said sub clause, and,
in particular, nothing in the said sub clause shall affect the operation of any
existing law in so far as it relates to, or prevent the State from making any
law relating to,
(I) the professional or technical qualifications necessary for practicing any
profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by
the State, of any trade, business, industry or service, whether to the
exclusion, complete or partial, of citizens or otherwise
Article 21 in The Constitution of India 1949
21. Protection of life and personal liberty No person shall be deprived of his
life or personal liberty except according to procedure established by law

7. Case analysis of
Naz Foundation V. Gov. of NCT and others
WP(C) No.7455/2001 Date of
decision : 2nd July, 2009

The Naz Foundation submitted that the harassment and discrimination of the
gay and transgender community in India resulting from the continued
existence of Section 377 affected the rights of that community which were
guaranteed under the Constitution, including the right to equality, the right
to nondiscrimination, the right to privacy, the right to life and liberty, and the
right to health.
They argued that the Constitution protects the right to privacy (which is not
expressly mentioned) under the right to life and liberty enshrined in Article
21. Furthermore, they submitted that the right to non-discrimination on the
ground of sex in Article 15 should not be read restrictively but should include
sexual orientation.
They also contended that the criminalization of homosexual activity by
Section 377 discriminated on the grounds of sexual orientation and was
therefore contrary to the Constitutional guarantee of non-discrimination
under Article 15. Finally, the Naz foundation stressed that courts in other
jurisdictions have struck down comparable provisions relating to sexual
orientation on the grounds that they violated the rights to privacy, dignity
and equality.

Court referred to the Human Rights Committees decision in Toonen v.


Australia, (No.488/1992, CCPR/C/50/D/488/1992, March 31, 1994) in which
the criminalization of sexual acts between men was considered a violation of
Article 2 of the International Covenant on Civil and Political Rights, where a
reference to "sex" was taken as including sexual orientation. On the basis of
the analysis of Indian and international human rights jurisprudence the High
Court declared that Section 377 was also unconstitutional on the basis of
Article 15:
We hold that sexual orientation is a ground analogous to sex and that
discrimination on the basis of sexual orientation is not permitted by Article
15. Further, Article 15(2) incorporates the notion of horizontal application of
rights. In other words, it even prohibits discrimination of one citizen by
another in matters of access to public spaces. In our view, discrimination on
the ground of sexual orientation is impermissible even on the horizontal
application of the right enshrined under Article 15.

Summarizing its judgment, the High Court focused on the importance of


holding the values of equality, tolerance and inclusiveness in Indian society
by stating:
If there is one constitutional tenet that can be said to be underlying theme
of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that
Indian Constitution reflects this value deeply ingrained in Indian society,
nurtured over several generations. The inclusiveness that Indian society
traditionally displayed, literally in every aspect of life, is manifest in
recognizing a role in society for everyone. Those perceived by the majority
as 'deviants' or 'different' are not on that score excluded or ostracized.

7.1. Judgement
132. We declare that Section 377 IPC, insofar it criminalizes consensual
sexual acts of adults in private, is violative of Articles 21, 14 and 15 of
the Constitution. The provisions of Section 377 IPC will continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal
sex involving minors. By 'adult' we mean everyone who is 18 years of
age and above. A person below 18 would be presumed not to be able
to consent to a sexual act. This clarification will hold till, of course,
Parliament chooses to amend the law to effectuate the
recommendation of the Law Commission of India in its 172 nd Report
which we believe removes a great deal of confusion. Secondly, we
clarify that our judgment will not result in the re-opening of criminal
cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
CHIEF JUSTICE
S. MURALIDHAR, J JULY 2, 2009
Naz Foundation V. Gov. of NCT and others
WP(C) No.7455/2001 Date of
decision: 2nd July, 2009
8. Law commission against section 377
- Law commission of India 172 report on review of rape laws. (D.O.No.6(3)
(36)/2000_LC(LS) March 25, 2000)

Clause 6 of the 172 report of law commission of India. It can be clearly


seen that there was a significant opposition of section 377 of IPC.
After detailed discussions with these organizations, the Commission has
recommended changes for widening the scope of the offence in section 375
and to make it gender neutral. Various other changes have been
recommended in sections 376, 376A to 376D. We have also recommended
insertion of a new section 376F dealing with unlawful sexual contact,
deletion of section 377 of the IPC and enhancement of punishment in section
509 of the IPC. In order to plug the loopholes in procedural provisions, we
have also recommended various changes in the Code of Criminal Procedure,
1973 and in the Evidence Act, 1872.

Under the same report in the clause 3 and 4 of introduction part


(2) Is it not wrong to classify the penetrative abuse of a child below the
age of 12 as unnatural offence under section 377 IPC or as outraging the
modesty of a woman under section 354, depending upon the `type
penetration ignoring the `impact' on such child.

(3) Is it not wrong to continue to treat non-consensual


penetration upon such a child as offence under section 377 IPC on par with
certain forms of consensual penetration (e.g. consensual homosexual sex)
where consenting party can be held liable as an abettor or otherwise.

In the chapter 2 under subheading 2.2 there was a significant proposal


to repeal this section
2.2. Draft of the Law Commission's proposals.- On consideration
of the `precise issues' submitted by the petitioner and in the light of
the order of the Hon'ble Court and also taking into account the
laws in force in certain western countries on this subject, the
Law Commission prepared a draft (Annexure-B) containing the
proposed new sections, namely, sections 375, 376, 376A, 376B,
376C, 376D in substitution of the existing sections375 to 376D and
also suggested a new section, section376E. The purport of these
new sections is to substitute the offence of `rape' under section 375
with the offence of `sexual assault' by including all kinds of
penetration.Besides the above, section 377 is proposed to be
deleted as unnecessary in the light of the preceding provisions.
Section 509 of IPC is also sought to be amended providing higher
punishment where the offence set out in the said section is committed
with sexual intent.

9.Conclusion
Section 377 is in violation of Right to Privacy and Right to Life as you can't
restrict the freedom of consenting people as far as their freedom is not
hurting anyone else.
This section is just an instrument of exploitation and it is almost not
possible to decide what type of sex do two consenting individuals are having
in private. It has been noted that section 377 is mostly used to harass sex
workers and AIDS/HIV affected people.
British's, who had imposed this inhuman provision on people of India, has
removed this kind of provision from their law.
There have been many positive developments in favor of Lesbian, Gay,
Bisexual and Transgender (LGBT) community on the international front. In
May 2015, Ireland legalized same-sex marriage. The country which had
decriminalized homosexuality in 1993 became the first country to allow
same sex marriage a national level by popular vote.
In June 2015, the US Supreme Court ruled that same sex marriages were
legal. Near home, Nepal legalized homosexuality in 2007 and the new
Constitution of the country too gives many rights to the LGBT community.
France, UK, Canada, United States, Australia and Brazil have de-
criminalized homosexuality. Other countries like Belgium, Brazil, Canada,
France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain,
Sweden and Uruguay allow either same sex marriage or a civil union.
Also the law commission of India significantly suggested to repeal the section
377 in the light of fundamental rights and said that its work was only to
avoid child abuse , rather not to criminalize consenting adult individuals.
Thus, consensual sexual activities between two adults of the same sex
should not be regulated by a law as it violates their Fundamental Rights and
a persons choice of sexual accomplice is no business of the State to regulate
on.
Section 377 is abused to brutalize the persons belonging to the gay
community. Popular morality, as distinct from constitutional morality as
derived from constitutional values, is based on shifting notions of right and
wrong and as of today, a large chunk of elite population is in favor of the
LGBT rights and hence, this shows that the State is not even going by the
popular morality but by its own morality and if there is any type of morality
that can pass the test of compelling state interest, it should be constitutional
morality.
11. Bibliography
1. Law commission 172 report.
2. Wikipedia
3. Manupatra
4. indiakanoon.com
5. SAME-SEX LOVE AND INDIAN PENAL CODE Section 377:AN IMPORTANT
HUMAN RIGHTS ISSUE FOR INDIA -by Robert Wintemute
6. Gay Rights in India
Author(s): Vimal Balasubrahmanyan
Source: Economic and Political Weekly, Vol. 31, No. 5 (Feb. 3, 1996),
pp. 257-258
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4403740
Accessed: 25-03-2017 22:40 UTC
7. A Ruling against Discrimination
Source: Economic and Political Weekly, Vol. 44, No. 28 (Jul. 11 - 17,
2009), p. 5
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/40279247
Accessed: 25-03-2017 22:40 UTC
8. The Constitution of India 1949
9. Indian Penal Code 1860
10. All India Reporter (AIR)