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On The Indian Penal Code

By the middle of the 19^th century A.D, India was well under the clutches of the British Raj. Several laws were passed, the majority of which are still in force in India, accepted by the Indians and which have stood the test of time. One such important law promulgated by the British was The Indian Penal Code.

The draft of the Indian Penal Code was prepared by the First Law Commission. It was chaired by Lord Macaulay. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Suggestions were also derived from the French Penal Code and from Livingstone's Code of Louisiana. The draft underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice, and the Judges of the then Calcutta Supreme Court who were members of the Legislative Council, and was passed into law in 1860. Unfortunately Macaulay (1800-1859) did not survive to see his masterpiece enacted into a law.

Such is the grandeur of the classic Indian Penal Code that even at a time when anti-imperialistic fervor conspired with fanatic nationalism was hell bent on pulling down any symbol of imperialism, the Code stood its ground not only in India, The Indian Penal Code has been inherited by Pakistan and Bangladesh, formerly part of British India and has also been adopted wholesale by the British colonial authorities in Burma, Sri Lanka, Malaysia, Singapore and Brunei, and remains the basis of the criminal codes in those countries.

Over a period of 150 years the Indian Penal Code has served the Indian society mutatis mutandis and today it faces another test of its pertinence in the modern world, the debate raging about the constitutional validity of Section 377 under Chapter XVI “Of offences affecting the human body”, categorised under the sub-chapter titled “Of Unnatural Offences”.

Section 377 of Indian Penal Code:

The sections states as follows:

“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 offence described in this section.”

Ingredients of the Offence:

The essential ingredients of the offence under Section 377 are as follows:-

(a)        Accused had carnal intercourse;

(b)        Such intercourse was with any man, woman, or animal and

(c)        It was against the order of nature.

Judicial interpretation of Section 377

The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of Section 377 IPC. The expression “carnal intercourse” is used in Section 377 IPC as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 IPC. According to the Concise Oxford Dictionary (ninth edition, 1995), the term “carnal” means “of the body or flesh; worldly” and “sensual, sexual”. Consent is no defence to an offence under Section 377 IPC and no distinction regarding age is made in the section.

In Khanu v. Emperor, AIR 1925 Sind 286, Kennedy A.J.C. held that “section 377 IPC punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings.... [if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is impossible.”

It appears that the courts had earlier held in R. V. Jacobs (1817) Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that inserting the penis in the mouth would not amount to an offence under Section 377 IPC. Later, Section 377 IPC has been interpreted to cover oral sex, anal sex and penetration of other orifices.

In Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, the issue was whether oral sex amounted to an offence under Section 377 IPC. It was held that the “orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.”

In Calvin Francis v. Orissa, 1992 (2) Crimes 455, relying on Lohana, it was held that oral sex fell within the ambit of Section 377 IPC. The Court used the references to the Corpus Juris Secundum relating to sexual perversity and abnormal sexual satisfaction as the guiding criteria.

In Fazal Rab Choudhary v. State of Bihar, AIR 1983 SC 323, it was observed that Section 377 IPC implied “sexual perversity”. It is evident that the tests for attracting the penal provisions have changed from the non-procreative to imitative to sexual perversity.

Hence the Section in question criminalises sex other than heterosexual penile-vaginal intercourse.

The Challenge:

Naz Foundation, a Non Governmental Organisation (NGO) filed a writ petition as a Public Interest Litigation to challenge the constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC), which criminally penalizes what is described as “unnatural offences”, to the extent the said provision criminalises consensual sexual acts between adults in private.

The petitioner NGO has been working in the field of HIV/AIDS Intervention and prevention. This necessarily involves interaction with such sections of society as are vulnerable to contracting HIV/AIDS and which include gay community or individuals described as “men who have sex with men” (MSM). For sake of convenient reference, they would hereinafter be referred to as “homosexuals” or “gay” persons or gay community. Homosexuals, according to the petitioner, represent a population segment that is extremely vulnerable to HIV/AIDS infection. The petitioner claims to have been impelled to bring this litigation in public interest on the ground that HIV/AIDS prevention efforts were found to be severely impaired by discriminatory attitudes exhibited by state agencies towards gay community  or trans-gendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which basic fundamental human rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities.

The petitioner’s submission is that the legislation criminalizing consensual oral and anal sex is outdated and has no place in modern society. In fact, studies of Section 377 IPC jurisprudence reveal that lately it has generally been employed in cases of child sexual assault and abuse.

It has been submitted that the fields of psychiatry and psychology no longer treat homosexuality as a disease and regard sexual orientation to be a deeply held, core part of the identities of individuals.

The petitioner also submitted that while right to privacy is implicit in the right to life and liberty and guaranteed to the citizens under Article 21. Limiting their plea, the petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

Further, it has been submitted on behalf of the petitioner that Section 377's legislative objectives based upon stereotypes and misunderstanding that are outmoded and enjoys no historical or logical rationale which render it arbitrary and unreasonable.

Arguments against Decriminalisation of Section 377:-

I. Different Religious views on Sodomy and Homosexuality:

• Christian view-

            The term Sodomy comes from the Ecclesiastical Latin: peccatum Sodomiticum, or "sin of Sodom."

The association of the ancient city of Sodom with depravity is of biblical origin. The Lord perceives Sodom and Gomorrah as places of grave sinfulness and seeks to discover whether this perception is really true before He destroys the inhabitants. The men of the city of Sodom desired that Lot give them the two men so that they may know them. Lot refuses to hand them over, and offers his two virgin daughters instead. This offer is refused. Sodom is subsequently destroyed by a rain of sulfur and fire[1]. From this biblical narrative, the word 'Sodomy' is derived. It has come to be synonymous with "unnatural sex".

            God created Adam and Eve, we never find statements in Genesis about Adam and Steve. Why break God's law by allowing homosexuality. If nature wanted same-sex people to live together, there would only be one sex rather than different sexes. Our society is based on opposite sex marriage.

• Islamic view-

All major Islamic sects disapprove of homosexuality. Islam views same-sex desires as a natural temptation; but, sexual relations are seen as a transgression of the natural role and aim of sexual activity.

Islamic teachings (in the hadith tradition) presume same-sex attraction, extol abstention and (in the Qur'an) condemn consummation. In concordance with those creeds, in Islamic countries, male desire for male youths is widely expected and condoned as a human characteristic similar as the admiration or attraction for an older or wiser sibling. Homosexual intercourse itself has been interpreted to be a form of lust and a violation of the Qur'an.

            Islam clearly considers homosexuality to be sinful. Homosexuality is described in Islam scripture as a profound mistake. According to Islamic believes, homosexuality is not within human nature, but people become gay because of their environments.[2]

• View of Hinduism-

Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back around 1500 BC and sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility. The description of homosexual acts in the Kamasutra, and evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships.

However, these experiences started losing their significance with the advent of Vedic Brahmanism.Giti claims that Aryan invasion dating to 1500 B.C began to suppress homosexuality through the emerging dominance of patriarchy. In the Manusmriti there are references to punishments like loss of caste, heavy monetary fines and strokes of the whip for gay and lesbian behavior. In the case of married women, it is mentioned that 'luring of maids' is to be punished by shaving the women bald, cutting of two fingers and then parading her on a donkey. Manu's specifications of more severe punishments for married women can suggest either a wide prevalence of such relationships among married women or a greater acceptance of these practices among unmarried women. In either cases, these references point to the tensions in the norms of compulsory heterosexuality prescribed by Brahmins.

“It is not my opinion–it is the verdict of the sastra[scripture]. Opinion–what is the value of opinion when the people are like dogs and asses? What is the use of taking the opinion of an ass? This vox populi–taking the opinion of the public–is degrading modern society. If the public is composed of drunkards, smokers, meat eaters, gamblers, and woman hunters, then what is the value of their opinion? Why take the opinion of fourth-class men? What Krishna says–that is the standard. Krishna is the supreme, and His version is final. No other opinion is allowed. When I introduced the principle “No illicit sex life,” I didn’t ask for opinions–”It must be done.”[3]

• Sikhism-

Sikhism has no written view on the matter, but in 2005, the world's highest Sikh religious authority described homosexuality as "against the Sikh religion and the Sikh code of conduct and totally against the laws of nature," and called on Sikhs to support laws against gay marriage.[4]

• Jainism-

Chastity is one of the five virtues in the fundamental ethical code of Jainism. For laypersons the only appropriate avenue for sexuality is within marriage, and homosexuality is believed to lead to negative karma because the sexual act is outside marriage. Jain author Duli Chandra Jain wrote in 2004 that homosexuality and transvestism "stain one's thoughts and feelings" because they involve sexual passion.[5]

Thus it is submitted that in a country where all the major religions are against Homosexuality and Sodomy, decriminalising such acts will entail wide spread agitation and outrage the varied religious population of the country.

II. An act that is technically unlawful Can not be rendered legitimate simply because it takes place on a consensual basis:

Just like ratifying an illegal act does not necessarily make the act legal, certain crimes even if done with consent is a crime no less. Offences like Adultery, Causing Miscarriage, Bigamy and polygamy, etc. are unlawful irrespective of its taking place on a consensual basis or not. Similarly, Unnatural Offence that is technically unlawful, being against the order of nature, cannot be rendered legitimate simply because it takes place on a consensual basis.

Adultery as defined in Section 497[6] states that:

Whoever has sexual intercourse with a person who is and whom he knows to have reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

In case of Adultery both the parties to the crime have their consent. In fact the woman is always a willing party and consenting party to sexual intercourse.

Causing Miscarriage as defined in Section 312[7] states that:

Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be also liable to fine.

Explanation:- A woman who causes herself to miscarry, is within the meaning of this section.

Bigamy as defined in Section 312[8] states that:

Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall be also liable to fine.

What harm is done if the activity is between consenting adults?

The fact that two adults consent to an action doesn't make it morally right or socially acceptable. The "harm" is that such reasoning leads us down a very dangerous and permissive slope to the detriment of the common good and the spiritual impoverishment of the individuals involved. After all, two consenting adults can engage in drug use, prostitution, bigamy, polygamy or other immoral activities. In other words, the determination of the morality of an action is found in the act itself and not in the consent of the people involved.

Homosexuality means warring against nature’s order, making human beings use their bodies in a way no animal, domestic or wild; no fowl, no bird of any description, no reptile would even try. It is repulsive for respectable human beings who know what their reproductive organs were meant for, to indulge in any experiment that is contrary to nature’s order. Perverts, deviants, psychopaths and all such will always find excuses to explain their bizarre relationships. To endorse sodomy and bestiality so as to avoid what perverts call ignorance, prejudice, hatred and religious fanaticism will be throwing the doors open for more devastating plagues  to join HIV/AIDS now ravishing many homes.

On the basis of the facts it can be corroborated that acts like Adultery, Causing Miscarriage, Bigamy and polygamy, sex determination of the Foetus, etc which are technically unlawful  cannot be rendered legitimate even if it is done on consensual basis.

Similarly, an act done under Section 377 of the Indian Penal Code cannot be rendered legitimate even if done on consensual.

III. Decriminalisation of 377 of the Indian Penal Code would provide unbridled license for the delinquent behaviour and under such circumstances discrimination on the basis of sexual orientation is valid:

Offences like Paedophilia, Necrophilia, Bestiality, etc comes under the purview of Section 377 of the Indian Penal Code. Therefore deletion of the said section can open the floodgates of delinquent behavior and be misconstrued as providing unbridled license for the same.

The absence of a preventive ordinance like Section 377 of the Indian Penal Code is the stuff of which legal nightmares are made. Absence of such ordinances gives to homosexuals and takes away from society at large. They take away, among other things:

1. The right of parents or school districts to control the moral calibre of the person who teaches their children;
2. The right of an employer to determine whether an applicant’s moral character will affect his job performance;
3. The right of Temples, Mosques, Churches, Gurudwaras and other religious entities to exclude, or refuse to hire, someone whose lifestyle is contrary to their religious convictions.

Deletion of Section 377 of the Indian Penal Code, technically provide legal protection for more than just homosexuals. They typically provide protection to anyone, regardless of sexual preferences. Any learned judge would find that such laws give protection to a large number of sex criminals. As for example, the possible protected behaviours under the absence of Section 377 of the Indian Penal Code:

* A convicted child molester[9], homosexual or heterosexual, could sue a day-care centre that refuses to hire him, claiming discrimination on the basis of his “sexual orientation”; deletion of Section 377 of the Indian Penal Code would thus protect behavior declared criminal under state law.

* A motel owner could be sued if he refused to rent a room to an unmarried couple[10]. This would be discrimination in the use of “public accommodations”. This would also be discrimination on the basis of “sexual orientation”, in this case their sexual preference for unmarried people or for people married to someone else. Deletion of Section 377 of the Indian Penal Code would be protecting behaviour declared criminal under state law.

* An insurance company could be sued for refusing to extend health insurance benefits to the sodomy partner of a homosexual. The insurance company would be discriminating on the basis of “sexual orientation” by refusing to extend coverage to “spouses” because of their sexual preferences. Since Sodomy would not be an offence after deletion of Section 377 of the Indian Penal Code.

* A landlord who refuses to rent[11] or sell a facility to a person running a house of prostitution could be sued for refusing to rent or sell housing based on the person’s “sexual orientation”. Yet prostitution is a crime under (state) law.

* A bank that refuses to loan money to moviemaker who enjoys making and selling child pornography[12] would be discriminating against the moviemaker on the basis of his “sexual orientation”. Yet the making and selling of child pornography is a crime under most state law.

Deletion of Section 377 of the Indian Penal Code could protect behaviour declared criminal under state law.

Thus it is proved beyond reasonable doubt that deletion of Section 377 of the Indian Penal Code can open the floodgates of delinquent behavior and be misconstrued as providing unbridled license for the same.

IV. Decriminalising Section 377 of the Indian Penal Code would mean endangering Public safety and Health and Morals:

It is most humbly submitted that the State has every authority to interfere with the right to privacy of individuals in the matters of Public safety and protection of health and morals.

Every society has a variety of moral principles. Without these moral principles a society cannot survive. Society can use the law to preserve morality.

Section 377 is that law which strives to preserve the morality, rich culture and traditional heritage of India. Repealing it would pave way towards indulgence in unnatural sexual activities against the order of nature which would in turn pollute the entire society by encouraging others to indulge and abet in this crime.

Homosexuality in the household can also be detrimental to the upbringing of the children, who are the building blocks of the nation.

Homosexuality is essentially antifamily. It encourages promiscuous sexuality, a self-centered morality, and socially irresponsible behaviour that exact huge costs from society. The law has every right to discourage people from entering into paths that are demonstrably destructive, -- physically and psychologically -- first to themselves, then to society itself.[13]

Indian society strongly disapproves of homosexuality and the disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.

India being a welfare state has gone beyond its traditional obligations to administer the nation. It is also concerned with the beneficial interest of the mass such as public safety and protection of health and Morals.

Right to Privacy is not an absolute right.

"The US Supreme Court has recognized the centrality of the family. In an opinion on the right of privacy, Justice Harlan said:

"The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal inquiry, however privately practiced ... but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected."[14]

In Vijaya v. Chairman and Managing Director,Singareni Collieries Ltd[15], it was stated that Subjecting an individual to compulsory HIV testing was not unconstitutional even though it infringed the individual’s right to privacy because the state also had an obligation under the constitution to take steps to improve public health.

Section 377 of the Indian Penal Code deals with the unnatural carnal intercourse against the order of nature. Consent of the parties is immaterial and the party consenting is equally liable as an abettor. The Unnatural offences discussed under this section are Sodomy and Bestiality.

Sodomy may be either Homosexual or Heterosexual. In case where the parties are of the same sex, it will be termed as Homosexual and if the parties are of the opposite sex it will be called as Heterosexual.

"The physiology of the rectum makes it clear that sodomy is unnatural. The Inward expansion of the rectum during anal intercourse frequently tears the rectal lining, resulting in spasms, colitis, cramps, and a variety of other physical responses. Furthermore, sperm can readily penetrate the rectal wall (the vagina cannot be so readily penetrated) and do massive immunological damage, leaving the body vulnerable to a bewildering variety of opportunistic infections." [16]

Since there is no systematic study or survey regarding the Diseases Related to Homosexuality

 in India, we cite the survey conducted in the U.S.A.

Diseases Related To Homosexuality

1. Mental Illness

A New Zealand study which followed 1007 individuals since birth found that at the age of 21, the 28 subjects classified as gay, lesbian or bisexuals were significantly more likely to have had mental-health problems than the 979 classed as heterosexual.[17]

2. Kaposi Sarcoma

The International Journal of Dermatology explains why homosexuals’ behaviors place them at high risk for this disease, which affects the mucous membranes and the skin of its victims:

“In this high risk group [the gay male population], the predominant portal of entry of free and cell-bound HIV as well as the brunt of associated cofactors and opportunistic infections can be traced to both ends of the gastrointestinal tract (mouth and anus) and also the genitalia, which happen to be common sites for KS lesions in addition to their lymphatic watersheds.”[18]

3. Hodgkin’s Disease

Homosexual men suffering from HIV/AIDS also suffer from other cancers and lymphomas. One study published in the Annuls of Medicine noted the connection between homosexual AIDS patients and Hodgkin’s disease. The study concluded, “An excess incidence of Hodgkin’s disease was found in HIV infected homosexual men.” The Journal of Clinical Oncology published a study that further supports a connection between homosexual male AIDS patients and Hodgkin’s disease.[19]

4. Anal Cancer

The Journal of the American Medical Association also published similar findings: "Epidemiological studies have shown that risk factors for anal cancer include homosexuality, history of receptive anal intercourse, presence of anal condylomata, and smoking." [20]

5. Impairment of Immune Response

Several researchers have concerned themselves with the immune dysfunction consequent to the direct entry of semen into the bloodstream by means of anal intercourse. Joseph Sonnabend has argued that repeated exposures to semen combined with various sexually transmitted disease pathogens result in impairment of immune response. Robert Root-Bernstein concluded that exposure to semen through anal intercourse can initiate lymphocytotoxic autoimmunity. Another researcher who recognizes the pathogenic effects of semen is Eleni Papadopulos-Eleopulos. [21]

6. AIDS

The CDC reports in its June 2000 HIV/AIDS Surveillance Report that men who have sex with men (MSM) account for the majority of AIDS cases in the United States.

AIDS CASES BY EXPOSURE CATEGORY

Male                Female            Total

Men who have sex with men                             348,657                -                  348,657

Injecting Drug Use                                           137,650            51,592             189,242

Men who have sex with men and inject drugs    47,820                  -                  47,820

Hemophilia/coagulation disorder                       4,847                    274              5,121

Heterosexual contact                                        27,952             50,257             78,210

Recipient of blood transfusion,

blood components, or tissue                               4,920               3,746               8,666

Risk not reported or identified                            48,343             19,042             67,387

* Includes 3 persons whose sex is unknown.

Numbers are based on AIDS cases reported to CDC through June 2000.[22]

Hence we see that protection and safety of Public Health and Morals is one of the important duties of the state and in order to do so the state can transgress the right to privacy of an individual.

Conclusion:

Today the issue of decriminalization of homosexuality has arose in the pretence of fundamental rights. Once homosexuality between adult consenting males is decriminalized then the issue of Gay and Lesbian marriages would be raised. Once the Gay and Lesbian Marriage is legalized then the issue of adoption of child would be raised. And all these issues will finally lead to the corruption of the morals of the people in the society.

Although many profess that homosexual marriages harm no one, this statement is completely false. As stated earlier, homosexual marriages have numerous detrimental effects on children raised in their household. Not only do the aforementioned influences apply, but also children raised in such an environment would have a higher possibility of choosing that type of lifestyle. Their parents are seen as being normal and looked up to as role models, guaranteeing their lifestyle being accepted by their children. Statistics show that 45% of gay males, and 20% of lesbians experience physical or verbal assault while in high school, and 28% of these teenagers feel forced to drop out of school because of harassment about their sexual orientation. [23]

"The physiology of the rectum makes it clear that sodomy is unnatural. The Inward expansion of the rectum during anal intercourse frequently tears the rectal lining, resulting in spasms, colitis, cramps, and a variety of other physical responses. Furthermore, sperm can readily penetrate the rectal wall (the vagina cannot be so readily penetrated) and do massive immunological damage, leaving the body vulnerable to a bewildering variety of opportunistic infections."[24]

Until now people have grown up looking at the heterosexual pairs and known them as to be Mother-Father, Uncle-Aunt, Husband-Wife, Mr-Mrs, etc but what would be the condition when two males start living together? Would they be called as Father-Father, Uncle-Uncle- Husband-Husband, Mr-Mr, etc?

As it is already proved beyond reasonable doubt that indulgence in unnatural sexual activities against the order of nature is polluting the entire society by encouraging others to indulge and abet in this crime, Section 377, the law which strives to preserve the morality, rich culture and traditional heritage of India, should not be repealed.