De-Criminalising Freedom of Sex, Abolish Article 377

Article 377 Abolition - Decriminalising Sexual Freedom: The Supreme Court Tuesday began hearing a number of petitions challenging Section 377 of the Indian Penal Code which criminalises homosexuality. A day before, a five-judge Constitutional bench led by Chief Justice of India Dipak Misra refused to defer the scheduled hearing after the Centre sought more time to file its reply. Apart from Chief Justice, the bench comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra

Background

Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861, introduced during the British rule of India (modelled on the Buggery Act of 1533) criminalizes sexual activities "against the order of nature", including homosexual activities.

The section was read down with respect to sex between consenting adults by the Delhi High Court in July 2009. That judgement was overturned by the Supreme Court of India (SC) on 11 December 2013 with the Court holding that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the SC. The three-member bench headed by the then Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.

On 24 August 2017 in a landmark judgment (also known as the Puttuswamy judgment), the SC had upheld the Right to Privacy as a fundamental right under the Constitution. The SC also had called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. The Puttuswamy judgment is believed to have implications for section 377 as consensual sexual acts in private can no longer be overseen by law.

In January 2018, a three-member SC bench heard a petition filed by five people asking the SC to revisit the Naz Foundation judgment. The case was referred to a larger bench and help was sought from the Union government.On 10 July 2018, a five-member constitutional bench of the SC commenced hearing of the pleas challenging the constitutionality of section 377. The Supreme Court had then said: “The section of people who exercise their choice should never remain in a state of fear.”

Justice Dipak Misra had further observed, “Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.”

Section 377 of IPC

Section 377 of the IPC states: “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.” This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.

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.

The ambit of Section 377 extends to any sexual union involving penile insertion per se. Theoretically, sexual acts such as fellatio and anal penetration may be punishable under this law.

Opposition and criticism

The Ministry of Home Affairs released figures indicating that nearly 600 people had been arrested under Section 377 in 2014, which was linked to an increase in the blackmail of LGBT people. According to the NCRB, in 2015, 1,491 people were arrested under Section 377, including 207 minors (14%) and 16 women. Human Rights Watch argues that the law has been used to harass HIV/AIDS prevention efforts, as well as sex workers, homosexuals, and other groups at risk of the disease, even though those found guilty of extortion in relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of the IPC. The People's Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals in India.

In 2006 it came under criticism from 100 Indian literary figures, most prominently Vikram Seth. The law subsequently came in for criticism from several ministers, most prominently Anbumani Ramadoss and Oscar Fernandes. In 2008, a judge of the Bombay High Court also called for the scrapping of the law.

The United Nations said that the ban violates international law. United Nations human rights chief Navi Pillay stated that "Criminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified", and that the decision "represents a significant step backwards for India and a blow for human rights.", voicing hope that the Court might exercise its review procedure.

View of Political Parties

Support

Rajnath Singh, a member of the ruling party BJP and the Home Minister, is on record shortly after the law was re-instated in 2013, claiming that his party is "unambiguously" in favour of the law, also claiming that "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.” Yogi Adityanath, BJP MP, endorsed Radev's comments, saying he welcomes the verdict and will "oppose any move to decriminalise homosexuality."

The Samajwadi Party made it clear that it will oppose any amendments to the section if it comes in Parliament for discussion, calling homosexuality "unethical and immoral." Ram Gopal Yadav stated that they support the Supreme Court decision as "It is completely against the culture of our nation."

Opposition

Finance Minister and BJP member Arun Jaitley has a different view from Rajnath Singh, saying that "Supreme Court should not have reversed the Delhi High Court order which de-criminalised consensual sex between gay adults" and "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed.”. BJP spokesperson Shaina NC said her party supports decriminalization of homosexuality. "We are for decriminalizing homosexuality. That is the progressive way forward.”

In December 2013, Indian National Congress vice-president Rahul Gandhi came out in support of LGBT rights and said that "every individual had the right to choose". He also said "These are personal choices. This country is known for its freedom, freedom of expression. So let that be. I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement", he said. The LGBT rights movement in India was also part of the election manifesto of the Congress for the 2014 general elections. Senior Congress leader and former Finance Minister P Chidambaramexpressed his disappointment, saying we have gone back in time and must quickly reverse the judgement. He also said that "Section 377, in my view, was rightly struck down or read down by the Delhi High Court judgement by Justice AP Shah."

The RSS revised its position, the leader Dattatreya Hosabale reportedly saying, "no criminalisation, but no glorification either."

After the 2013 verdict, the Aam Aadmi Party put on their website:

"The Aam Aadmi party is disappointed with the judgment of the Supreme Court upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The Supreme Court judgment thus criminalizes the personal behavior of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times. Aam Aadmi Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law."

Summary

Freedom of sex is also one of main planks of human progress like freedom of speech and freedom of religion. One should not be criminalized for his/her choice as long as its not forced. Indian religious texts are full of literature on homosexuality and lesbianism.

Indian cannot take one step forward and two backwards. Its time to abolish article 377 and de-criminalise freedom of sex.