Section 377 (IPC): Everything you need to know!

In the last 2 weeks , the Supreme Court hearings of the section 377 IPC has gripped the entire nation's attention. Let's find out what exactly is Section 377.

"Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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 offence described in this section"

There are a few terms in the above stated Section which are not clearly defined in the constitution. Terms such as "Order of Nature" and "Unnatural offences".
I will try to give its origin, previous judgments, brief summary of the ongoing case, and some final thoughts on it.

The Origin
This law was enacted in the Victorian, Pre-Independence era in 1861. The British morality and conscience at the time dictated the enactment of law. Now, 160 years later it stands before the apex court of India for the test of constitutionality.

Previous Judgments & History
The case for abolishing the Section 377 of the Indian Penal Code was presented in front of the Delhi High Court  by the Naz Foundation,  (read Naz Foundation vs State of Delhi), the two constitutional judge bench gave a landmark judgement terming section 377 is a violation of fundamental rights protected by the Indian constitution in July 2009.

The Court did not strike down Section 377 as a whole. The section was declared unconstitutional insofar it criminalizing consensual sexual acts of adults in private. It is reported that an "audible gasp went around the court room as the judge read out the judgement".

Further, the judgment of the Delhi High Court was challenged in the Supreme Court, and in December 2013, a two constitutional judge bench of The SC overturned the High Court Order and stated that Section 377 stands and unnatural sex constitutes a criminal offence.

Fast forward to 2018, the ongoing hearings in the Supreme Court is a review petition on the judgement given earlier, this time with a larger constitutional bench.

The Ongoing Case, the arguments
The ongoing case in the Supreme court has various parties involved. Instead of naming each party and their positions, I shall for the benefit of reading divide the arguments which are for and against the Section.

Arguments Supporting the Scrapping of 377

• We are talking about sexual orientation not sex, many of the advocates have pointed out that sexual orientation is innate and not developed as a lifestyle.
• Since it is inherent, it cannot be unnatural, as in such an orientation is granted by the nature itself. 
• Owing to the above core points, Section 377 has no standing since there is no such thing as unnatural for homosexuals to have a relationship.
• Another strong point is that, the LGBT community owing to their "(un)naturality" are deprived of social and economic benefits. 
• They cannot lead a normal life, and often have to endure harsh mental distress often causing trauma and depression. They are even forced to marry person of the opposite gender to comply with the societal common values.
• The law is nearly 160 years ago and doesn't stand the moral litmus test at this current time and age.

Furthermore, Section 377 violates the articles 14, 15,16,19 and 21 of the Indian Constitution.

• Article 14: Equality before law irrespective of race, sex etc.,
• Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex etc.,
• Article 16: Equality in matters of public employment.
• Article 19: Protection of Freedom of Speech and Expression
• Article 21: Protection of life and personal liberty.

Arguments Opposing Section 377

• “Idea that people are born with a sexual orientation is not supported by scientific evidence.”
• It can bring down the existing family system which is the bulwark of the existing society.
• It has been observed that legalizing this has given way to increase in HIV/AIDS related cases in other countries.
• It is unnatural because there is no such thing as a "gay gene" in human body.
• No reasonable classification between going for and against the order of nature! (Intelligible differentia - difference that is capable of being understood)
• It is a medico legal case and needs more investigation.

What the government says?

On the matter of homosexuality, the government has left it to the 'wisdom of the Supreme Court'. However, they have told the Supreme Court to limit the discussion to only decriminalizing homosexuality and not to tread into the civil and marriage rights of it just yet.

Also, the government has sought the SC a clarification on bestiality (sex with animals)

Supreme Court Observations So far

• "The community feels inhibited to for medical aid due to stigma surroding the matter, and due to family pressure and other factors, it leads to bisexuality and causes trauma." (Justice Indu Malhotra)
• "Homosexuality is not an aberration it is a variation."(Justice Indu Malhotra)
• "We won't discuss on marriage, but we need to protect the relationship under fundamental rights and stop moral policing."(Justice DY Chandrachud)
• "The cause of sexually transmitted diseases are not intercourse, but unprotected intercourse, this can happen between man and woman who have unprotected intercourse, but you don't call it crime." (Justice DY Chandrachud)
• "Also, if you call "order of nature" as an act that leads to reproduction, will you even call sex that does not lead to reproduction as against "order of nature" ?" (Justice Rohinton Fali Nariman)
• "If you license prostitution you can control it, but if you kick it under the carpet, it'll only lead to health concerns" (Justice Rohinton Fali Nariman)
• "If a law is Unnatural , it is the duty of the court to strike it down." (Justice Rohinton Fali Nariman)

The Judges:

CJI Dipak Mishra, Justice Chandrachud, Justice Indu Malhotra, Justice Fali Nariman, Justice AM Khanwilankar.

Things not yet answered

• Incest is not an acceptable proposition in our society.
• If more than 2 individuals indulge in sexual activity can it still be considered private?
• Can state regulate laws in private relationships? (Eg a widowed father and a step daughter in a relationship is wrong, will this be overridden if we say sex between 2 consenting adults cannot be questioned under right to privacy)
• The existing marriage acts, can it accommodate this type of marriage? Inheritance laws and other civil rights.
• Can this be resolved in an already existing section? for eg Section 87 (which talks about consensual activities that can cause harm are not punishable) 

Final Thoughts

A strong case is presented in so far as scrapping the Section 377 is concerned. And the supreme court has made some strong observations which punch holes in the arguments which seek to retain/amend the existing section.

Either way, the only prayer is that, albeit it is natural to get influenced either ways due to highly emotional representations of the cases on both sides. It should place the matter to an objective test.

References:
1. https://barandbench.com/section-377-hearing-summary-written-submissions/
2. https://qz.com/1330419/section-377-indian-supreme-court-judges-remarks-on-lgbtq/
3.https://barandbench.com/section-377-section-87-ipc-protects-consensual-homosexual-acts-adults-mahesh-jethmalani-written-submissions/
4. https://indiankanoon.org/