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 years

The 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 propensity to experience desire must be treated with respect. In addition to respect for relationships based on consent, it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner."

Or this paragraph, on the broadening of application of human rights to acknowledge sexual autonomy: “Accepting the role of human sexuality as an independent force in the development of personhood is an acknowledgement of the crucial role of sexual autonomy in the idea of a free individual. Such an interpretation of autonomy has implications for the widening application of human rights to sexuality.”

Or this paragraph on the expanding universe that sexuality is: “Sexuality cannot be construed as something that the State has the prerogative to legitimize only in the form of rigid, marital procreational sex. Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives…

“The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing.”

The judgment therefore provided an insight into the constitutional principles that governed the matter before it, drawing a prudent and efficient linkage of them with several aspects of the human condition. It was this reason that the judgment would live on for years to come.

Adultery Law: protecting property rights of men

Section 497 made adultery a punishable offence against “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man.” The provision went on to state that, “in such case the wife shall not be punishable as an abettor.” The offence, therefore, applied only to the man committing adultery, and the power to prosecute for adultery also rested only with the husband of the woman.

A study of the history of adultery shows that the primary purpose of such laws was to protect the property rights of men, or the husband’s “rights” over his wife.

It has therefore been time and again noted that while women were exempted from prosecution under Section 497, the underlying notion upon which the provision rests, which conceives of women as property, is extremely harmful. Additionally, it has also been noted that the provision was premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women were ‘victims’ of adultery and therefore required the beneficial exemption under Section 497, is consequently condemned. Besides, it was asserted that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society.

The provision was set aside last month by the same five-Judge Bench which struck down Section 377. Again, it was especially Justice Chandrachud’s judgment that calibrated individual autonomy and sexual agency as hallmarks of personal liberty, and recorded abject disapproval of coercive state action into these domains.

It acknowledged the recognition of sexual privacy as a natural right, protected under the Constitution. It then opined that to shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right.

“Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster,” he finally ruled.

Reflecting the society that law seeks to dwell in

Both the verdicts therefore heavily emphasise on individual autonomy and sexual independence of consenting adults. While one verdict recognised the fact that the provision failed to acknowledge women as equally autonomous individuals in society, the other recognized that the freedom to choose a partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.

Naturally, women’s rights campaigners have since hoped that the ruling would also encourage national debate in India about other issues, including the criminalisation of marital rape which is not a crime in India.

That aside, among other things, the common thread in the both the verdicts was the gunning down of the two provisions  with an elucidation of the right to sexual autonomy and privacy. Of course, public reaction to the verdicts has been a mixed one, with the opposers largely relying on their concept of what the institution of marriage should look and be like. Consequently, any desired positive effects of the judgments would take a little while to finally trickle down to the society. Let September, 2018 therefore be remembered as the month when the shackles of the two colonial era IPC provisions were rightly shattered, paving way for the law to reflect the society that it seeks to dwell in.