Section 377 IPC Could Potentially be Struck Down if Not Read Down

The Union Government, through the Additional Solicitor General (ASG) Tushar Mehta, announced that it would not be contesting the curative petition in the Supreme Court to decriminalise section 377 of the Indian Penal Code (IPC) today. The decision however, would be limited only to the extent that the criminality of the section in relation to consensual sex between two adults is concerned. All the other incidental concerns such as marriage and inheritance would however merit the Union Government contesting them. Justice Chandrachud expressed that the Court was not considering such corollary rights, but merely the criminality of the concerned section.

Read More: Revisiting the Battles Around Section 377 of the Indian Penal Code

Two sessions were held yesterday in which the petitioners' advocates, Mukul Rohatgi and Arvind K Datar presented their submissions in the matter. Rohatgi argued on the basis of Articles 14 (right to equality), 15 (prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth) and 21 (protection of life and personal liberty), whereas, Datar argued on Article 19 (right to freedom) and related legal authorities.

Read More: Supreme Court Issues Notice to the Government On Section 377

Rohatgi cited six Indian case laws and one from the United States of America to buttress his arguments. He referred to:

• NALSA v. Union of India which guaranteed the rights of transgenders to healthcare and socio-economic welfare.
• The Delhi High Court decision in Naz Foundation v. Government of NCT of Delhi which effectively read down section 377 to exclude the LGBTQ community from its operation.
• The Supreme Court's decision in Justice (Retd.) KS Puttuswamy v. Union of India in which privacy was held to be a part of Article 21 and hence a fundamental right.
• The decision of the Supreme Court in Shafin Jahan v. Asokan KM and Ors. (The 'Hadiya' case) which held that two consenting adults can marry.
• The Supreme Court's decision in Shakti Vahini v. Union of India which dealt with the issue of honour killings.
• The decision in Independent Thought v. Union of India wherein the Supreme Court read down the second exception to section 375 IPC, which did not recognise non-consensual sexual intercourse between a man and his wife as rape, provided she is above the age of fifteen. The Court in this case held it to be rape in line with the Protection of Children from Sexual Offences Act, as well as other laws determining the age of majority to be eighteen years.
• The case from the United States of America referred to by Rohatgi, was John Geddes Lawrence and Tyron Garner v Texas in which the 'sodomy law' of Texas was struck down as being unconstitutional.

In the second session, Datar presented his arguments. Expanding on the case law submitted in the first session, he presented two arguments against the Suresh Kumar Koushal decision. His first argument was against the application of the 'presumption of constitutionality' which the Court had applied; and the second was the maxim ‘cessante ratione legis, cessat et ipsa lex’ – as the reason for a law ceases, the law itself ceases.

On the first point, the Court in Suresh Kumar Koushal had held that since section 377 IPC had not been repealed by Parliament after the Constitution had come into force (the IPC was created by Macaulay in 1860), the provision was presumed to be constitutional. On this note, Datar contended that if the provision had not existed and were to be introduced today, it would fall foul of the Fundamental Rights in Part III of the Constitution. Thus, he opined that the decision to presume the constitutionality of the provision was not correct.

On the second point, – which derives from the first one – he argued that a belief held at a different time may have been relevant then, however, if in the present day it is untenable, then what is the basis for enforcing a law that is no longer relevant?

Read More: Ray of Hope in the Legal Battle of the Queer Movement in India

Considering the arguments advanced on behalf of the petitioners and the stand of the Government regarding the criminality of section 377, it is likely that this will turn into a victory for the Lesbian Gay Bisexual Transgender and Queer (LGBTQ) communities.