The Subsistance of a Draconian Law Section 377 of the Indian Penal Code

This article was submitted by Arun Chauhan from Institute of Law, Nirma Univeristy, Ahmedabad for National Legal Writing Competition,2016.

Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?

Pulitzer Prize nominated author Ernest Gaines

 INTRODUCTION 

The Right to be treated as Equals and the Freedom to live freely with Choices are the principal benefits attached in living a human life. This freedom is guaranteed to all irrespective of their cast, creed, sex or religion which is also absolute and mandated in the form of fundamental rights under the Constitution of India. Any law or decree which takes away these fundamental rights are “supposedly” to be held in contravention but these constitutionally unhindered/non-interfered rights and freedoms look like nothing but a bullet note in the paper when we look at the colonially construed law of Section 377 under the Indian Penal Code, 1860. This particular Code which was supposedly made to enlist and charge the criminal offenses accordingly has in the language of Section 377 created a diabolical menace based on a person’s sexual orientation and discretionary acts based on his/her express choice and on the freedom to do that. This law in its language criminalizes the certain sexual acts which do not include penile-vaginal intercourse and terms those acts as against the order of nature. In perspective, it not only invades and dictates the terms of private acts but also takes away the aspect of choice and consent making it irrelevant. Even though the implementation of this law does not differentiate between heterosexuals and homosexuals but the imposition of a blanket prohibition on all penile-non-vaginal sexual acts under the vague rubric of ‘unnatural offenses’ has made homosexuals inherently as criminals under the eyes of the law.

THE HISTORICAL DEMEANOR AND THE PRESENT BEARING

This enactment was done under the British colonial regime to criminalize “carnal intercourse against the order of nature” probably a result of the deep-rooted Judeo-Christian religious morality that abhorred non-procreative sex. Since then, even after Indian independence, the people had to bear the consequences of such a law which were construed under the misplaced sense of morality arising from the religions being subjective in nature. The Ancient Greeks practiced homosexuality openly and there is very little evidence to deny the fact that India has a history of Same-sex relations supported by the Ancient Indian texts and sculptures.

Current estimates of the occurrence of exclusive homosexuality range from one to twenty percent of the population.[1] . The National Aids Control Organization estimates that India is home to 2.5 million MSMs (men who have sex with men).

THE ORDER OF NATURE 

All of the above leads to one question, what is the order of nature and what would not be? Unfortunately, the law is pretty much silent on this aspect which has made it as a weapon to harass many innocents just based on their sexual orientation (LGBTs). The judiciary has in past tried to give the meaning to the order of nature in the case of Khanu v. Emperor[2] where the court interpreted the meaning of having carnal intercourse for the purpose of having children only, which would mean using contraceptive measures would be against the order of nature and hence would attract the offence of section 377 as well.

CONCLUSION

The provision of section 377 of the Indian Penal Code directly contravenes with one’s right to privacy without interference, equality without being subjected to and the unfettered choice of lifestyle and choosing the sexual acts and partner. The Delhi High Court in the case of Naz Foundation[3] did declare this section as unconstitutional in 2009 but it was overruled by the Supreme Court in 2013 after the hue and cry of many religious fanatics who filed plenty of petitions in lieu of the Delhi High Court judgment. The apex court though recognizing the flaws attached with such law evaded the action saying that the responsibility to amend a law lies with Parliament and judiciary cannot enforce it. Since then, there has been no action in order to amend such law which shows the current predicament of Indian mentality and the sense of morality which is embedded in so-called moral liberals.

A vague law dictating and enforcing the choice for a person is not only arbitrary but holds to be in contravention with one’s fundamental rights constitutionally speaking. A proper law which is supposed to govern us should hold a reasonable nexus between the objects sought and to be achieved but section 377 holds none and stands to be not only arbitrary but acts as a hindrance for a larger part of society to develop and express.

REFERENCES 

[1] R.L. Sell, J.A. Wells & D. Wypij, The Prevalence of Homosexual Behavior and Attraction in the United States, the United Kingdom and France: Results of National Population-Based Samples, 24 (3) ARCH SEX BEHAV 235–48 (1995).

[2] AIR 1932 Cal 487

[3] (2009) 160 DLT 277; W.P. (C) No. 7455/ 2001 of 2009 (Delhi HC)

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