Section 377 and 497: Two Colonial Era Vestiges Gunned Down Within A Month

The month of September this year was a cause of joy for several individuals for more than one reason. The Supreme Court of India delivered landmark judgments, the impact of which trickled down to the citizens of the country in numerous ways. The judgments in fact set the country into two halves, those who lauded the court for being liberal and progressive, and those who accused the Supreme Court of judicial overreach and pitted “constitutional morality” against societal/popular morality. But that’s a story for another time.Amidst the horde of judgments that were delivered were two concerning two provisions of the Indian Penal Code (IPC), which were remnants of the British Empire to the country’s legal system—Section 377 and Section 497.IPC was introduced during the English colonial rule on the recommendations of a Law Commission headed by Thomas Babbington Macaulay. While the Code underwent several changes over the years, the two provisions managed to stay put, despite having been challenged several times in the past.However, in a win, the two judgments have not only done so on legalese, but also on a deeper understanding of a person’s sexual autonomy and desire to express one’s core identity.Only the second time in 158 yearsThe judgment striking down adultery law is especially significant considering that this is only the second time in 158 years that an IPC provision has been completely struck down, and not just read down, like in the case of Section 377.The first such instance was way back in 1983, in Mithu Singh v. State of Punjab, when a five-Judge Constitution Bench struck down Section 303 of the IPC, which prescribed mandatory capital punishment for life convicts who commit murder. The provision was drafted with a clear legislative intent to offer protection to prison staff who were chiefly British.The judgment held the provision to be unconstitutional and void, being violative of Articles 14 and 21 of the Constitution of India on three grounds: disproportionate sentencing, creation of a separate class for life convicts without intelligible differentia and rational nexus, and curbing of judicial discretion for sentencing.Since then, Section 309, which makes "attempt to suicide" an offence, was struck down, but later restored. The issue came to light with the case of P. Rathinam v. Union of India, where the Supreme Court based its decision of unconstitutionality of Section 309 on the analogy that fundamental ‘rights to do’ include ‘the right not to’. Accordingly, the Court interpreted the “right to life” under Article 21 as inclusive of the “right to die”.This decision was, however, overruled by Gian Kaur v. State of Punjab, which identified the right to refuse medical assistance for survival as antithetical to the essential fabric of “right to life”. However, the Court refused to expressly determine the constitutional validity and legality of euthanasia.In another such instance, in Kedar Nath v. State of Bihar, the Supreme Court limited the scope of sedition law (Section 124A IPC) in India. While saving the offence of sedition from constitutional invalidity, the court held that the section aimed to render penal only such speeches as would be intended, or have a tendency to create disorder or disturbance of public peace by resort to violence.Interestingly, the Bench that had set aside Section 303 was headed by then CJI Justice YV Chandrachud, father of Justice DY Chandrachud, who was a part of the bench that now struck down Section 497, and read down Section 377— his opinions in both the cases worthy of consideration for their analysis of the principles that govern the law as well as the society.Sexual activities “against order of nature”Section 377 penalised unnatural sex or sexual activities “against the order of nature”— a phrase which has not been defined in law. However, having been modelled on the English Buggery Act of 1553, the provision has been understood to penalise sodomy and any form of sexual activity which would not ordinarily result in procreation.The provision was read down after a legal battle that continued for over a decade, by a five-Judge Constitution bench comprising CJI Dipak Misra, and Justices AM Khanwilkar, DY Chandrachud, RF Nariman and Indu Malhotra. The provision was struck down to the extent it criminalized consensual sexual acts between adults, whether homosexual or heterosexual. However, bestiality still continues to be an offence.Justice DY Chandrachud’s opinion, specifically, inter alia celebrated “sexual agency”, in the light of right to intimacy, which flows from right to privacy and individual autonomy. His opinion brimmed with an astute understanding of the concept, as well as a drive to imbibe these concepts into the jurisprudence for future reference.For instance, consider this paragraph on the need to allow consenting individuals to be able to express love without any societal fetters: “Consensual sexual relationships between adults, based on the human...

Section 377 and 497: Two Colonial Era Vestiges Gunned Down Within A Month

Apoorva Mandhani

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