Sec 377: Questions from a layman

Disclaimers:

• ·         I am not a lawyer. If there are some legal nuances I have misunderstood or missed out, please let me know by commenting.
• ·         I believe that members of the LGBT community should have the same rights as anyone else. That being said, I do not have an agenda here. In any case, Sec 377 not only criminalizes homosexual acts, but also a lot of heterosexual ones. All I want to do is put questions I had on Sec 377 out there, and try to get answers through dialogue.

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I should let it be known that I am not very bright. I don’t understand why a lot of things are done, and in many cases I fail to see the bigger picture. One such case is the existence of Section 377 in the Indian Penal Code (IPC). But I want to try and understand some things about Sec 377. I hope you can help me.

The law in question: The Section 377 of the IPC covers ‘Unnatural offences’, and reads “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.”

Question 1: The question of what: What is ‘carnal intercourse against the order of nature’? Is there an exhaustive or even indicative list of what constitutes this? The explanation given is “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” I don’t think that cleared up anything. Is procreation the deciding factor here – I know certain Catholics consider use of contraceptives against the order of nature. So, is sex using contraceptives illegal? Is it illegal to use sex toys, lubricants, or anything else, since it isn’t strictly ‘natural’? In case of lesbians, how does the law work? I know that oral and anal sex are illegal. That sucks! (Pardon the pun)

Question 2: The question of why: I don’t know what purpose the law serves. However, the very basis for the arguments supporting and opposing the law hinges on this. From the reading of this law, it looks like the person who enacted this law wanted to make any form of sexual experimentation illegal, doesn’t it? The activists who want the act repealed point out that this law is archaic and was set up during the British rule on 6^th October, 1860. However, that doesn’t necessarily make the law wrong. If the law still serves a purpose and is in the best interests of the people, why repeal the law? However, in this case, whose interests does it serve, and how?

From what I understand, contrary to popular belief, the law isn’t against homosexuals – I am currently setting aside the fact that they are the ones who are most targeted as a result of this law, since you can’t really blame the law for how people choose to read it. The law can be used even against someone who does anything a little kinky. Is that any reason for punishing someone with life imprisonment in the worst cases?

There have been arguments that Sec 377 is required to prevent sexual offences against children. To counter, there is no mention of age in the law – so the law is vague here. Further, that argument has lost relevance with the ‘Protection of Children Against Sexual Offences Bill, 2011’. The need for Sec 377 for prosecution of perpetrators of rape is also not a valid reason, as there is no mention of consent in the law either. And the Criminal Law (Amendment) Act, 2013 specifically addresses rape and sexual harassment. As for animal cruelty, a specific provision in ‘The Prevention of Cruelty to Animals Act, 1960’ makes more sense that this unspecific law.

The most common argument for Sec 377, however, is that homosexuality is against the Indian culture and religious beliefs and Sec 377 is used for protection of our morals. To counter, though I have seen some Bible verses which indicate that homosexuality is an abomination; I have also seen depictions of various sexual acts in temple walls which are propagated as against Indian culture. Should we break them down too? But let’s ignore this for now. Even if Sec 377 was meant purely as a means of making homosexuality illegal and nothing else, it is an extremely inadequate law in my humble view, because homosexuality is not highlighted specifically here. But really, is it the purpose of the law to act in favour of culture if it violates our fundamental rights? Especially in a country with so many religions and cultural beliefs as India?  If that is the case, am I wrong to believe that this sets a dangerous precedent?

I was trying to compare unnatural sexual acts (whatever they are) with smoking, which is not illegal in India. It is a scientifically proven fact that smoking can lead to life threatening illnesses, both for active and passive smokers. And we have gone only so far as to have specific designated areas for smokers, and haven’t banned it outright. Here you have an act that is known to be lethal, which is not illegal, but cannot be done in public. On the other hand, you have an act that is not a risk to anyone’s life, done in total privacy, which is illegal for some reason I am unaware of. If two or more consenting adults decide to engage in sexual relations in a manner in which all parties involved are ok with, what is the problem? Let’s make no mistake, society is not a party involved here. It’s a private matter, and it’s done in a private space, harming no one.

As you can see, I am really confused as to why this law exists. I just don’t see the point.

Here’s what went down: Ever since the PIL filed by the AIDS Bhedbhav Virodhi Andolan in 1991, and the subsequent PIL by the Naz Foundation in 2001, the arguments on all things Sec 377 have been linked to gay rights in India. And probably for that reason, this battle has become so controversial. To quickly recap, one of the starting points was when Kiran Bedi refused distribution of condoms to inmates in Tihar jail, since that would be abetting a crime under Sec 377. After a bit of back and forth – where the High Court refused to consider the petition since Naz Foundation had no standing to challenge the legality of the law and no one had been prosecuted by the law in the recent past; but then the petition was sent back by the Supreme Court to be reconsidered on merit. Of course, there was a lot of political hullaballoo around it.

But, on July 2, 2009, the Delhi High Court ruled – “We declare that section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Article 21, 14 and 15 of the Constitution” (protection of life and personal liberty, equality before the law and prohibition of discrimination). “The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. 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”. So that cleared up quite a bit of the confusion. Without a doubt, consensual homosexual and kinky heterosexual intercourse had become legal, but non-consensual acts and acts involving minors were still illegal.

Of course, after the Delhi High Court verdict, Suresh Kumar Koushal filed a petition in the Supreme Court against the verdict. Who is this guy, you ask? “Petitioners are citizens of India who believe they have the moral responsibility and duty in protecting cultural values of Indian Society”! And of course, in their eyes, sexual freedom of any kind is against our culture. Anyway, it’s clear that the only reason this petition was filed was that they weren’t happy with gay sex being legal – the actual question of constitutional validity and equal rights had nothing to do with this.

Anyway, on 11 December 2013, the Supreme Court ruled “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.” Of course, a lot of protests and political noise ensued, and still continues.

Question 3: What did the Supreme Court actually say, and what does it mean?: Obviously, the Supreme Court didn’t just say this much. The judgement runs 98 pages. Needless to say, I have so many questions on it. So what exactly did the Supreme Court say? Below are some things the Supreme Court said (not quoting):

Every legislation enacted by Parliament or State Legislature is presumed to be Constitutional, since the legislature is a body representing the people and takes their best interests into account and represents the will of the people. As the law has not been amended yet, it can be concluded that the Parliament has decided to leave the law in. So, the Court cannot strike down the law simply because it is misused or times have changed. So, Parliament needs to take the decision that Sec 377 should be removed. That could be a lot more difficult to achieve, don’t you think?

Though the law does not specify age or consent, the bench is apprehensive of whether the Court would rule against someone in case of proved consensual intercourse between adults. So, it is difficult to prepare a list of acts that would be covered by this section. Sec 377 does not criminalize a particular people or identity or orientation, but merely certain acts. Oh, that’s a big relief. No one is discriminating against the LGBT community here! Being gay is not illegal, as long as you don’t engage in gay sex. Huh?? So, just to be clear, is the message “Be as gay as you want, but don’t have sex.”? Err.. ok. Are all homosexuals supposed to be celibate? Doing it behind closed doors still makes it illegal – just that you don’t get caught. Isn’t this tantamount to denying homosexuals the right to a full life? Actually, why even deny heterosexuals their choice of sex? And why have ambiguities in the law to make the Court apprehensive about the outcome of a case – why not make the law specific to clarify what it intends to achieve? I still don’t understand why a private matter that harms no one is illegal.

The writ petition filed by Naz Foundation failed to give particulars of incidents of discriminatory attitude by State agencies towards sexual minorities, and so, denial of basic human rights to them. Also, Naz Foundation did not furnish particulars of cases involving harassment and assault from public and public authorities to sexual minorities. So, the details were insufficient to find that homosexuals are being subject to discriminatory treatment. I have no idea what was the evidence provided by Naz Foundation, but aren’t there enough cases to indicate that there is discrimination against homosexuals? Distribution of condoms to homosexuals is abetting a crime, since Sec 377 criminalized homosexual intercourse. Also, isn’t the petition filed by Mr Koushal enough evidence that society treats homosexuals as criminals? But, from a legal perspective, can sufficient evidence be collected to prove this? And what would count as evidence?

Those who indulge in ordinary intercourse and in intercourse against the order of nature are different classes of people and the second class cannot claim that Sec 377 suffers from the vice of arbitrariness and irrational classification. Sec 377 only defines the offence and prescribes punishment for it. People should be tried and found guilty before being punished. So, the High Court was incorrect to rule Sec 377 as being against Articles 14 and 15 of the Constitution. What does this even mean? How is this not irrational classification? In fact, it’s insane classification. Also, is the fact that the offence is described and punishment prescribed and trial is required supposed to make things any better?

The High Court overlooked the fact that a miniscule fraction of the country’s population constitutes the LGBT community, and in over 150 years of the law being in place, there have been less than 200 prosecutions. As such the section is not against the provisions of Articles 14, 15 and 21. So what? Even if I ignore the persecution versus prosecution aspect – the fact that this law is being used as an extortion device against homosexuals, this makes absolutely no sense. Isn’t the violation of even one person’s rights a failure of the law? Should the number of prosecutions matter when making a decision if a law is fundamentally right or wrong? If the prosecutions were 2,000 or 200,000, would the judgement be any different? And who decides the number that will make this a relevant case? Moreover, if the LGBT community constitutes such a small part of our population, shouldn’t the efforts to make sure that their rights are protected be more? Isn’t it the purpose of the law to treat everyone equally, and to protect those who are marginalized? How can we preach equality for all if the supreme legal body of the country used the rule of “majority wins”?

Naz Foundation attacked Sec 377 on the ground that it is misused to harass, blackmail and torture people, especially from the LGBT community. This doesn’t necessary make the law itself bad, as the section does not mandate, suggest or condone such behaviour. No argument there. The law cannot be held as bad just because the keepers of the law are abusing it. But can’t this be grounds for revisiting the law? Surely, if a law is more misused than used (less than 200 prosecutions versus innumerable cases of blackmail and harassment using the law), there must be something wrong with it.

In its ‘anxiety’ to protect the ‘so-called rights’ of LGBT persons and to declare that Sec 377 violates the right to privacy, autonomy and dignity, the High Court had relied extensively upon the judgements of other jurisdictions; and though these were informative about the plight of sexual minorities, they cannot be applied ‘blindfolded’ for the constitutionality of the law enacted by the Indian legislature. Makes sense, I guess. The culture, lifestyle, etc. of other countries are different from ours, and due thought should be given before using these foreign cases in our context. So give it thought. Make an informed decision based on the cases from both home and abroad. Don’t rubbish a decision just because other countries’ judgements have been referred to. Article 14 of the Indian Constitution has been adopted from the Irish Constitution. The very law in question was written by the British, for crying out loud!

On a parting note, “While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.” Basically, the bench has said that Sec 377 is not unconstitutional, so it is not the Supreme Court’s job to do anything to the law. That doesn’t stop the Parliament from doing something about it. They have passed the buck to the politicians. God help us.

I have to say, I think the Supreme Court is being harshly criticized and being made the target for all hate on the verdict. Though some of their pronouncements baffle and shock my simple brain, and I believe that Sec 377 is unconstitutional and so can be dealt with by the Court, they are right in a lot of ways. The legislature should man up and remove/revise Sec 377. After all, they represent the will of the people. The ruling party is quick to say that they are disappointed by the verdict. So do something about it. But we all know the reality of the situation – if this comes to a vote in Parliament, the law will not change. It’s sad that our country is so helpless in almost all important issues because of petty politics.

What next: The first option available is a review petition, asking the judges to relook at the case. This has already been rejected by the Supreme Court on Jan 29, 2014. A curative petition was filed, which the Supreme Court agreed to consider on April 3, 2014. So now, we wait in hope. Given that the Supreme Court passed a landmark judgement recognizing transgenders as a “third gender” (India is the first country to do so), we can still be hopeful. If even this doesn’t work, the only hope we have is that there would be a legislative amendment or an ordinance passed. But honestly, I don’t think our politicians have the balls for it.

It’s a simple question, really: For a moment, forget the nuances and due process and legal mechanisms bullshit. I think the purpose of the law is to separate right from wrong. Are the actions suggested in Sec 377, if done between consenting adults, wrong? Doesn’t the law violate the rights of any person, LGBT or not, to express their sexuality? Gay, transgender or straight, don’t we have a right to choose with whom and how we enjoy sexual relations? Isn’t this a human rights issue, rather than a political, cultural or religious one? I have so many questions on this law, but I think it all boils down to a simple question: “Is this law right?”

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P.S.: I have used words like homosexual, gay (including lesbians), and LGBT interchangeably. I don’t mean to be insensitive in my usage of words, but I haven’t made attempts to be politically correct. I hope there is no doubt that my heart is in the right place.