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Photo: Getty Images
Photo: Getty Images

Who’s responsible for modernizing a 150-year-old law?

The 'vice' of sodomy and bestiality that forms the basis of this offence in today's Section 377 can be traced directly to an ancient law

A five-judge bench of the Supreme Court just concluded its hearing on a law that traces its history back nearly 500 years. Section 377 of the Indian Penal Code (IPC) is modelled on Britain’s Buggery Act of 1533. The prime architect of that Act was the (in)famous Thomas Cromwell, chief minister in the court of Henry VIII (he of six wives). The “vice" of sodomy and bestiality that forms the basis of this offence in today’s Section 377 can be traced directly to that ancient law. Cromwell’s Act made it a capital offence. Even when there was lack of evidence and the accused was held guilty of some lesser charge, he was often bound on the pillory—a method by which public humiliation was added to punitive action.

Section 377 reads as follows: “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 a fine." The law found its way to India when the architect of India’s IPC in 1860, Thomas Macaulay (often credited with bringing English education to India), added it into the code at his discretion and without much debate. The terms “carnal intercourse" and “against the order of nature" are not defined precisely anywhere in the code. These definitions and interpretations of the law have emerged with wide variety primarily through case law in British India, and, subsequently, in a host of misapplied cases in independent India.

In a landmark judgement in 2009, the Delhi high court, opining on Section 377, excluded acts of carnal intercourse by consenting adults in private. The court found Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the Constitution . Additionally, it was found to be in violation of the right to privacy and dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and Articles 14 and 15). The judgement also stated that it would unfairly target the LBGTQ+ community because the acts that are criminalized are closely associated with homosexuality.

In summary, the Delhi high court found Section 377 to be unconstitutional. The Delhi bench, adding practicality to wisdom, said that “this clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report". (As an aside, this report suggests the complete recast of several sections of the IPC, and, in so doing, recommends the deletion of Section 377 altogether).

Just four years later, a two-judge bench of the Supreme Court overruled the Delhi high court judgement on the grounds that it was legally unsustainable. The bench said: “In light of the plain meaning and legislative history of the section, we hold that Section 377 will hold irrespective of age and consent." The bench took a literal and technical view rather than the wider sweep that the Delhi high court had applied, putting legal technicality above judgement and wisdom.

This philosophical dichotomy is at the root of the legal debate on Section 377. One side (the literalists) holds that Parliament must enact laws that the judiciary should enforce, and, therefore, it is up to Parliament to change the law. The other side (the pragmatists) has always maintained, as the incumbent government just stated, that the courts must opine if Parliament is unable or unwilling to modernize a 150-year-old law. Earlier this month, the Supreme Court began to hear a clutch of appeals challenging the constitutional validity of Section 377. The court has now reserved its judgement. However, there have been many statements made by the bench that make it sound likely that the court will rule in favour of the Delhi exclusion. Justice Rohinton Fali Nariman has said that “the whole object of the fundamental rights chapter is to give power to the court to strike down laws that majoritarian governments do not touch due to political considerations. We are not bothered about what government does. They may enact, repeal, do whatever they want. It is our duty to uphold fundamental rights." The bench added: “If Section 377 of the IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent."

One other factor in favour of the Delhi exclusion is an intervening and major judgement on privacy made in the Puttuswamy case. A nine-judge bench upheld the right to privacy as a constitutional right in 2017. That judgement will likely combine with a pragmatist view and offer the Delhi exclusion on Section 377.

The broader question on whether the right to privacy in the Puttuswamy case and the Delhi exclusion on Section 377 imply judicial overreach or merely judicial interpretation in the context of weak and highly political governments, remains. The nine-judge bench for Puttuswamy and the five-judge bench on Section 377 (if they rule in favour of the Delhi exclusion) will make it settled law for now.

P.S: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant," said John Stuart Mill.

Narayan Ramachandran is chairman, InKlude Labs. Read his earlier columns at www.livemint.com/avisiblehand

Comments are welcome at narayan@livemint.com

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