Perhaps the most hotly debated provision of India’s richly woven legal fabric today is Section 377 of the Indian Penal Code (IPC). In a nutshell, this provision is embedded in the chapter XVI (Of offences affecting the human body) and under a separate heading ‘of unnatural offences’ prohibits carnal intercourse against the order of nature with any man, woman or animal. Notably, it stands separate from the heading ‘of sexual offences’ in the same chapter. Terms ‘man, woman’ & ‘animal’ are defined in sections 10 & 47 respectively. The Delhi High Court in Naz Foundation held that such criminalization was ultra vires the Constitution. After hearing the appeal a 2 judge bench of the Supreme Court restored its constitutionality. Review was summarily dismissed and the curative petition stands referred to a Constitution bench which ideally as per Article 145(3) should have heard it at the first place.
Herbert L Packer gave two models of criminal process which point towards the heart of criminal jurisprudence. He calls them ‘Due Process Model’ & ‘Crime Control Model’. These models he did not label as is and ought and represented an attempt to talk about minute-delicate adjustments between competing demands of society’s response towards crime. Packer assumes the ex post facto clause (See Article 20(1) of India’s Constitution) in the Constitution to be operative in spirit and that the function of defining conduct that may be treated as criminal is separate from and prior to the process of identifying an dealing with persons as criminals. The Crime Control Model tends to de-emphasize the adversary aspect of the process and the Due Process Model tends to make it central. In simple words, while the Crime Control Model casts a duty on the state to curb crime by high rates of apprehensions and convictions, the Due Process Model makes sure that innocent must not be prosecuted by elaborate successive stages.
In his famous 1988 Taft lecture, Justice Antonin Scalia mooted Originalism as the lesser evil. Originalism in simple words is a method of constitutional interpretation (in our case Article 14, 15 & 21) which states that constitution should be interpreted according to the intentions of its framers. This originalism has been accepted by our courts is form of the original intent theory and Constituent Assembly debates have been used to solve cases of extreme importance. However, Scalia gives a slightly different angle to this. He propounds that originalism implies the original meaning of text and not what the draftsmen intended. Stretching this theorem to the section beforehand, it is important to see the intention of the provision and not the intention of framers or the time when it was formulated. Notably, Scalia’s Originalism has been criticized by non-originalists for being faint hearted. However, it remains relevant.
Prof. Philip Bobbit gave 6 constitutional arguments which have been widely accepted by almost all juridical systems; Historical, Textual, Structural, Doctrinal, Ethical & Prudential. According to Bobbit, an assertion of constitutional meaning based in one of these six modalities is legitimate, while an assertion based in something else is not. These arguments have traditionally been used to interpret Constitution but can be stretched to interpret other statutes too.
To apply these three separate but of utmost relevance doctrines needs a connecting thread in view of answering constitutionality of section 377. To connect dots, I suppose the best tool available is the Parrando’s Paradox. Though it mostly finds application in population dynamics and financial risks, it is extremely important to interlink sophisticated legal phenomenon. It suggests: you have 100 coins, consider 2 games, Game A & Game B. In Game A you lose 1 coin every time you play. In Game B you count how much money you have left. If it is an even number, you win 3 coins. Else you lose 5 coins. If one plays any of these games exclusively he is bound to lose. However, if one plays them alternatively he will win 2 coins for every 2 games.
In the present case we have 3 games i.e. Packer’s models of criminal process, Scalia’s Originalism and Bobbit’s constitutional modalities. Testing the 3 propositions separately gives a mixed output for validity of Section 377. As per the Crime Control Model it is important to have a provision dedicated to curb sexual offences against animals or against men or against women by women even if we consider that Sec 375 & 376 partly cover that area. Nullifying Section 377 will craft a vacuum as Section 375 makes it abundantly clear that rape can only be done by a man of a woman except as under Sec 376C which uses the expression ‘whoever’. Grave sexual offences pertaining to penetration to an adult male only find solace under Sec 377 as other provisions are weaker in punishment. The Due Process Model further complicates it as Article 20 stipulates that no person can be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. So relying exclusively on Packer’s process suggests that Section 377 cannot be declared void straightaway. Justice Scalia proposes that the intent of law must be measured separately from the intent of the framers for calculating originalism. Undeniably, under the rich culture of India prior to the Mughal’s dominance (read Islamic) & British Raj (read Christian) LGBTs were accepted in the society and were not treated as mere sexual objects. In 1860 when Lord Macaulay drafted the IPC, this culture of mutual independence stood suppressed and resulted in a penal prohibition. Originalism suggests that the original intent of the provision was to enhance the Christian pride and impose rules which were separate from what the natives professed through their literature and art. Further, Bobbit’s modalities can be tested together intra wise in Parrando’s Paradox or with the above two theorems. Modalitywise, historically Section 377 had a different intention with what it is actually used today. Textually, it is important to have its presence on the statute book. Structurally, it was drafted to suit the needs in 1860 as I will propose in the end it needs modification. Doctrinally, there is no solid precedent except the cases on its validity. Ethically, it is debatable as to whether our society is ready to accept such drastic change in sexual behavior. Prudentially, validity of such a provision requires deep socio-legal thinking on costs and benefits.
Testing and connecting these principles of law alternatively generates 4 important topics which the Court will have to address; i.e. Right to sexual activities, Freedom of sexual orientation, Liberty of sexual identification & extent of criminalization of consensual-non consensual activities by miniscule population. To ponder upon validity of Sec 377 there are three routes originating from the criminal process models to constitutional modalities via Scalia’s originalism. The first one is the interconnection between the due process model and Historical argument by Bobbit. Originalism and Historical model go hand in hand. The straight jacketed proposition is that historically the framing of Sec 377 was to address a Christian need of governance which stands diluted today as a large number of common law countries which had a similar provision when they were British colonies have burnt it out. Second, a parallel bridge can be drawn from the crime control model to textual & structural modalities. As discussed above, rubbing Section 377 totally will create a judicial vacuum for a separate class of offences. In understanding the text the strong version of Sapir Whorf Hypothesis (Whorfianism) may be used. The Court must therefore not quash it completely but direct the State to rephrase the language of the text so as to include offences but distinguish exploratory sexual activities, private sexual activities, having a particular sexual tendency and sexual activities in romantic relationships. Third, by extension towards Hard Paternalism a triangle can be drawn from crime control model to prudential modality. Hard Paternalism can be understood primarily as restricting a competent adult’s liberty for his own good under conditions that violate his autonomy. Hard Paternalism is famously criticized by Joel Feinberg the principle of autonomy is absolute or inviolable and benefits whenever the two values clash. Anyhow, a cost benefit analysis of Section 377 puts forward conflicting views regarding openness in society, acceptability of differently oriented and whether a judicial decision should be based on acceptability. Prudence and judicial discipline commands that while balancing rights within the society the courts must always uphold what the rule of law demands and not what the society accepts. Section 377 definitely violates basic right to live with dignity with rampant oppression and neglect. Just because a person is differently oriented he/she must not be looked upon. But it also must not be forgotten that man by nature is nasty and brutal. Contrarily, criminal activities against and by such people must not and cannot be sidelined.
This case like its predecessors in 4th Judges case will redefine the limits of constitutional understanding. Perhaps if not Parrando’s Paradox, the its inverse in Braess Paradox can help answering a complicated question of law. In this lies an interesting challenge again. Lets hope for the best; fingers crossed!
Namit Saxena is a lawyer and can be reached at firstname.lastname@example.org