Background:-

a. You may be aware that, the Supreme Court on Tuesday, February 3, 2016, referred a batch of curative petitions against Section 377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.

b. For ready reference, the judgement of SC and Delhi HC are made available for download.

c. The question that will be tested is

Whether the provisions of section 377 amounts to denial of the rights to privacy and dignity [which are fundamental rights] and results in gross miscarriage of justice?

d. Delhi High court concluded in case of Naz Foundation vs Government Of Nct Of Delhi And Others,WP(C) No.7455/2001WP(C) No.7455/2001, Date of Decision : 02.07.2009

“We declare that Section 377 IPC, insofar it criminalises 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 nonvaginal 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 172nd 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.”

e. Supreme court concluded in case of Suresh Kumar Koushal & Anr vs Naz Foundation & Ors, Civil Appeal No.10974/10986/10981/10983/10984/10975/10973/10985/10976/10980/10982/10977/10978/10979 of 2013, Date of Decision: 11.12.2013

In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.

Why This Article-:

f. Apparently, not many [including me] are completely aware of the contents of the SC judgement.

g. There is a need to instigate though process in the minds of readers. One should try to read the actual text of the judgements of SC and Delhi HC.

My Personal opinion-:

h. LGBT is just different sexual orientation and is not an offence when engaged by two consenting adults.

i. The most important, powerful argument was

various scientists / scientific institutions across the world have proved / upheld the sanctity that, LGBT is not unnatural but only a different sexual orientation.

j. Refer para 51 on page 91 of the SC judgement

Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section…….

k. Also refer Pages from 69 to 77 where the SC has re-produced the precedence of how section 377 should be applied. In this connection refer observation of SC on page 77 as follows

Similar views were expressed in State v. Bachmiya Musamiya, 1999 (3) Guj LR 2456 and Orissa High Court in Mihir alias Bhikari Charan Sahu v. State 1992 Cri LJ 488. However, from these cases no uniform test can be culled out to classify acts as “carnal intercourse against the order of nature”. In our opinion the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances in which it is executed. All the aforementioned cases refer to non consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analyzing the manner in which the section has been interpreted. We are apprehensive of whether the Court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.

l. This section only shifts the onus of proof. In case of criminal offence, the onus to prove a guilt is on the person making such a claim. This section shifts the primary onus on the adults engaging in non conventional sexual relations.

m. In my opinion, it is a correct view. One cannot overlook the vast population running into 125 crores and its social / cultural nature.

n. In view of above, Judgement of SC does not result in gross miscarriage of justice amounting to denial of the rights to privacy and dignity [which are fundamental rights]

Other relevant observations of SC Judgement

o. Refer para 42 on page 82

Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty. Therefore, the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution.

p. One of the most criticized observation of SC is para 43 on page 83

While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

q. The above observation cannot be read in isolation. It does not, at all, mean, that just because such category is in minority, it will have to suffer.

r. Refer Para 52 on page 93

In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature. This view was expressed as early as in 1973 in Jagmohan Singh v. State of U.P. (1973) 1 SCC 20. In that case, a Constitutional Bench considered the legality of the death sentence imposed by the Sessions Judge, Shahjahanpur, which was confirmed by the Allahabad High Court. One of the arguments raised by the counsel for the appellant was that capital punishment has been abolished in U.S. on the ground of violation of the 8th Amendment. While considering that argument, this Court observed:

“13. Reference was made by Mr Garg to several studies made by Western scholars to show the ineffectiveness of capital punishment either as a detterent or as appropriate retribution. There is large volume of evidence compiled in the West by kindly social reformers

and research workers to confound those who want to retain the capital punishment. The controversy is not yet ended and experiments are made by suspending the death sentence where possible in order to see its effect. On the other hand most of these studies suffer from one grave defect namely that they consider all murders as stereotypes, the result of sudden passion or the like,disregarding motivation in each individual case. A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high standing in the country society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society.

We have grave doubts about the expediency of transplanting Western experience in our country. Social conditions are different and so also the general intellectual level. In the context of our Criminal Law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. We have not been referred to any large-scale studies of crime statistics compiled in this country with the object of estimating the need of protection of the society against murders. The only authoritative study is that of the Law Commission of India published in 1967. It is its Thirty-fifth Report. After collecting as much available material as possible and assessing the views expressed in the West both by abolitionists and the retentionists the Law Commission has come to its conclusion at paras 262 to 264. These paragraphs are summarized by the Commission as follows at p. 354 of the Report:

“The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.

It is difficult to rule out the validity of, or the strength behind,many of the arguments for abolition. Nor does the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture,India cannot risk the experiment of abolition of capital punishment.

Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context.Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.

On a consideration of all the issues involved, the Commission is of the opinion, that capital punishment should be retained in the present state of the country.”

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