Constitutional validity of Section 377 of the Indian Penal Code

(S.377IPC)

FACTS

1. This writ petition has been preferred by Naz Foundation, a Non-Governmental Organization (NGO) 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 criminalizes consensual sexual acts between adults in private. 

2. The challenge is founded on the plea that Section 377 IPC, on account of it covering sexual acts between consenting adults in private infringes the fundamental rights guaranteed under Articles 14, 15, 19 & 21 of the Constitution of India.

3. The petitioners submit that Section 377 IPC should apply only to non-consensual penile non-vaginal sex and penile non- vaginal sex involving minors. The Union of India is impleaded as respondent No.5 through Ministry of Home Affairs and Ministry of Health & Family Welfare. Respondent No.4 is the National Aids Control Organisation (hereinafter referred to as “NACO") a body formed under the aegis of Ministry of Health & Family Welfare, Government of India. NACO is charged with formulating and implementing policies for the prevention of HIV/AIDS in India. 

4. Respondent No.3 is the Delhi State Aids Control Society. Respondent No.2 is the Commissioner of Police, Delhi. Respondents No.6 to 8 are individuals and NGOs, who were permitted to intervene on their request. The writ petition was dismissed by this Court in 2004 on the ground that there is no cause of action in favour of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation.

5. The Supreme Court vide order dated 03.02.2006 in Civil Appeal No.952/2006 set aside the said order of this Court observing that the matter does require consideration and is not of a nature which could have been dismissed on the aforesaid ground. The matter was remitted to this Court for fresh decision. 

JUDGEMENT

The High Court declared that Section 377 of the Indian Penal Code criminalizes consensual sexual act of adults in private and it violates Article 21,14,15 of the Constitution. Section 377 will continue govern the non-consensual penile non-vaginal sex and penile non-vaginal sex which involves minors (who is below 18 years of age) and a person who is below 18 years would be presumed a non consensual sexual act. In the end it was duly mentioned that this judgment will have prospective effect.

RULES

Article 14 in The Constitution Of India 1949

Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth)

1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

2. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to -

a) Access to shops, public restaurants, hotels and places of public entertainment; or

b) The use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.

Article 21 (Protection of life and personal liberty)

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Section 377 in The Indian Penal Code

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.

Article 19 in The Constitution Of India 1949

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

• To freedom of speech and expression;
• To assemble peaceably and without arms;
• To form associations or unions;
• To move freely throughout the territory of India.

Article 12 of The Universal Declaration of Human Rights

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

ANALYSIS

Section 377 of the Indian Penal Code is based on the Judaeo-Christian moral and ethical standards which is just to procreate and any other sexual activity was found to be “against the order of nature". So this section is clearly outdated and it does no good in the modern society. 

In the case Francis Coralie Mullin v. Administrator, Union of Delhi and Others, the court defined dignity as requiring clothing,shelter, nutrition and the ability to socialize without being embarrassed. Section 377 acts as a weapon for harassment, forced sex, spreads discriminatory views towards same sex-relations, curbs the rights of the sexually minority and by criminalizing homosexuality the homosexuals have been pushed into isolation resulting lack of information on prevention and treatment of HIV/AIDS. In Maneka Gandhi v Union of India  “personal liberty" has been given a widest judgment in relation to Article 19 and Article 14. Every law should be in consistent with Article 21,19 and 14 of the Indian Constitution and even if there's a procedure established by law which deprives a person of his liberty it must satisfy Article 19 and Article 21. 

In Kharak Singh v. The State of U.P it was held Article 21 includes right to privacy also. In Gobind v. State of M.P the principle was further developed from where it was left if Kharak Singh, Thus a law which deprives a person of his liberty must stand the (Golden Triangle Test) test of Article 21, Article 19 and Article 14 of the Constitution. So if  we put section 377 through the test its clear that Section 377 clearly violates Article 21 which guarantees right to privacy and dignity. The term “sex" used in Article 15 cannot be limited just to “gender" but it also covers the sexual orientation of a person. Therefore, there should be equality on the basis of sexual orientation. Criminalization of homosexuality acts through Section 377 is discriminating people on the basis of their “sexual orientation" and thus violates Article 15.Prohibition of homosexuality through Section 377  have violated the basic freedom under Article 19 (1) (a) (b) (c) (d) have been violated for example, a persons potential to make a statement or express about his sexual orientation or engaging in consensual homosexual activity is confined.

Aruna Ramchandra Shanbaug v. Union Of India

1. Aruna Ramachandra Shanbaug was a staff Nurse working in King Edward Memorial Hospital, Parel, Mumbai. On the evening of 27th November, 1973 she was attacked by a sweeper in the hospital who wrapped a dog chain around her neck and yanked her back with it. He tried to rape her but finding that she was menstruating, he sodomized her. To immobilize her during this act he twisted the chain around her neck. 

2. The next day on 28th November, 1973 at 7.45 a.m. a cleaner found her lying on the floor with blood all over in an unconscious condition. It is alleged that due to strangulation by the dog chain the supply of oxygen to the brain stopped and the brain got damaged. It is alleged that the Neurologist in the Hospital found that she had plantars'  extensor, which indicates damage to the cortex or some other part of the brain. She also had brain stem contusion injury with associated cervical cord injury. It is alleged that 36 years have expired since the incident and now Aruna Ramachandra Shanbaug is about 60 years of age. 

3. She is featherweight, and her brittle bones could break if her hand or leg are awkwardly caught, even accidentally, under her lighter body. She has stopped menstruating and her skin is now like papier mache' stretched over a skeleton. She is prone to bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can only be given mashed food, on which she survives.

4. It is alleged that Aruna Ramachandra Shanbaug is in a persistent negetative state (p.v.s.) and virtually a dead person and has no state of awareness, and her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or communicate, in any manner whatsoever. Mashed food is put in her mouth, she is not able to chew or taste any food. She is not even aware that food has been put in her mouth. She is not able to swallow any liquid food, which shows that the food goes down on its own and not because of any effort on her part. The process of digestion goes on in this way as the mashed food passes through her system. However, Aruna is virtually a skeleton. Her excreta and the urine is discharged on the bed itself. Once in a while she is cleaned up but in a short  while again she goes back into the same sub-human condition. Judged by any parameter, Aruna cannot be said to be a living person and it is only on account of mashed food which is put into her mouth that there is a facade of life which is totally devoid of any human element. It is alleged that there is not the slightest possibility of any improvement in her condition and her body lies on the bed in the KEM Hospital, Mumbai like a dead animal, and this has been the position for the last 36 years.

JUDGMENT 

The court based on the doctors report and the definition of brain death under the Transplantation of Human Organs Act, 1994, Aruna was not brain dead. She could breathe, had feelings and also produced all the necessary stimulus. Even though she is in a PVS (permanent vegetative state) terminating her life was iniquitous. The right to take the decision on behalf of Aruna was with the management and staff of KEM Hospital and not Pinki Virani. The life saving mechanic in the case was mashed food and the Indian law in no way encouraged it. Removal of the ventilators and discontinuing the food would be a huge impact on Aruna. Allowing euthanasia on Aruna reverse the effect of the nurses and staff of the KEM Hospital for years. The Court to prevent the misuse of the power vested in the High Court, the Supreme Court allowed passive euthanasia in certain conditions only approved after completing a due procedure. When an application for passive euthanasia  is filed the Chief Justice of the High Court should constitute a bench of atlas two judges and they should decide or to grant approval for the application. But before granting the approval three doctors should be nominated by the bench. Simultaneously the doctors and the Hight Court should issue a notice to the State and close relatives and parents of the patient after this the High Court bench gives the verdict. However, Aruna Shanbaug was denied but any time in the future  if the staff of KEM Hospital felt a need for the same they can approach the court and follow the established procedure.

RULES

1. Indian Penal Code (IPC)

a) Section 302: Punishment for murder. - Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine

b) Section 304: Punishment for culpable homicide not amounting to murder. - “Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years,….."

c) Section 306: Abetment of suicide. - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

2. Constitution of India

a) Article 21: “No person shall be deprived of his life or personal liberty except according to procedure established by law."
b) Article 32: (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

ANALYSIS

The court explained and differentiated euthanasia. Euthanasia or mercy killing is of two types active and passive. Active euthanasia  requires the use of lethal substances to kill a person. Passive euthanasia entails withholding the medical treatment or withdrawing life support system. Further euthanasia is categorized between voluntary and non-voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient whereas in non-voluntary the consent is unavailable for example if the patient is in coma or is unable to give the consent. 

In the case of  P.Rathinam v. Union of India it was held that Article 21 also includes  right to die, Article 21 also has a positive content not only negative. In Gian Kaur v. State of Punjab , in this case the validity of Section 306 of the IPC was challenged which penalized the encouragement of suicide, this case overruled P.Rathinam and the court added in the context of PVS patient or who is terminally ill the right to die does not mean to terminate the life but it means accelerating the process of death which has already began. It was also added that right to live with human dignity include a death with dignity which means not a death of mental and physical pain. For the first time in English history in a landmark judgment of Airedale NHS Trust v. Bland the right to die was allowed by withdrawing life support system. In the case of Mckay v. Bergsted the Supreme Court of Nevada, after due inspection by the state and the interests of patient, it was approved to remove the respirator.

But in this case Aruna was completely capable to breathe and she did not need any external aid to breathe.

CONCLUSION

Article 21 prohibits the deprivations of right to life and right to personal liberty except according to a procedure established by law. Article 21 applies to natural persons. This right is to available to every citizen including an alien but it does not mean that a foreigner has the right to settle in India. Article 21 has a very wide sense, right to life does not only mean mere existence. Right to life is fundamental to our very existence to survive in a society. It is the only Article in the Constitution that has received the widest possible interpretation.

In the Naz foundation case the Supreme Court widened the the ambit of Article 21 and held that right to life include right to live with human dignity, enjoy the privacy. In this case Section 377 played a native role and isolated the sexually minority people from the majority and were disseminated, harassed based on the sexual orientation.

In the Aruna Shanbaug case the Supreme Court distinguished between euthanasia and attempt to suicide. Right to life also include living a life of dignity up to the end of the life naturally. This may include the right of a dying man to also die with dignity when his life is flowing out. This cannot be equated with the right to die an unnatural death curtailing the natural span of life.