The Supreme Court’s judgment on Section 377 IPC has driven the LGBT (Lesbian Gay Bisexual Transgender) activists into a rebellious mood.
What does Section 377 IPC say? It states as follows:-
“377. Unnatural offences: 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 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 offense described in this section”
Homosexuals are clearly not the targets. The section clearly mentions "whosoever" and "man, woman or animal". If one looks into the history of convictions under this section, it can be seen that there has been no case of a consensual homosexual act being prosecuted / convicted under this law.
Now, let us see the definition of ‘rape’ under Section 375 IPC.
“375. Rape: A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
A man cannot commit rape on another man. Nowadays we often hear school boys being forced to have sex with male teachers, male inmates of hostels being subjected to such behavior by male members of the staff, male employees being subjected to similar behavior by employers. Section 375 will not apply to such cases. It is only Section 377 that will apply to such cases.
Offence under Section 377 is a cognizable offence. Under Section 154 of the Code of Criminal Procedure, “every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.” The police officer will register the First Information Receipt (FIR) on receipt of a complaint. In the case of consensual sexual act in private, there is no question of giving any complaint and therefore no FIR will be registered. Unless one of the parties gives a complaint alleging unnatural offence no action can be taken. Even in the case of married couple, if one subjects the other to unnatural sexual act against the will of the other, the other party can file a complaint for offence under Section 377.
The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their publication “Less than Gay: A Citizen's Report” dealt with Section 377 and asked for its repeal. The Naz Foundation (India) Trust, an activist group, filed a public interest litigation (PIL) in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. However, in 2003, the Delhi High Court refused to consider the petition regarding the legality of the law saying that the petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court against the decision of the High Court dismissing the petition on technical grounds. The Supreme Court decided that Naz Foundation had the locus standi to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called “Voices Against 377”, which supported the demand to 'read down' section 377 to exclude adult consensual sex from its purview.
On 2-7-2009, the Delhi High Court held as follows:-
“We declare that Section 377 IPC, in so far as 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 and 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 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.”
The order of the High Court was challenged by a large number of organizations and individuals including Joint Action Council, Kannur and Shri B.P.Singhal who were interveners before the High Court by filing Special Leave Petitions in the Supreme Court of India. During the pendency of the SLP, several individuals and organisations filed applications for permission to intervene and all the applications were allowed.
On December 11, 2013 the Supreme Court upheld the constitutional validity of Section 377 IPC in the following terms:
“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 latter 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 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. …..
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 the last more than 150 years less than 200 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…..
It is well settled that the mere possibility of abuse of provision of law does not, per se, invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done “not with an evil eye and unequal hand”. ……
We hold that Section 377 does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable….
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.”
What else could the Supreme Court have done? It is for the Parliament to amend the law in accordance with the Constitution of India.