Indian Penal Code - Reforms

Reforms

• The Section 377 had been interpreted to suppress the rights of sexual minorities in India. This section has been termed as the biggest hurdle in dealing with control of AIDS in the country. But the Delhi High Court on 2 July 2009 gave a liberal interpretation to this section and laid down that this section can not be used to punish an act of consensual sexual intercourse between two adult males. This was incorrectly termed by many people including reputed media houses as amendment of this section which it was not. The case is pending in Supreme Court since then. -- Section 377- Gay Sex is no Crime- Delhi High Court judgment- Date of Judgment-19.08.2009- 2009 JCC Page No. 1787—In The High Court of Delhi— Hon’ble Chief Justice Ajit Prakash Shah, Hon’ble Dr. Justice S. Murlidhar- Naz Foundation Vs. Government of NCT of Delhi & Ors. -- "Indian Penal Code- Section 377—Unnatural Offence- Constitution of India—Article 12—Universal Declaration of Human Rights—Article 17- International Covenant of Civil and Political rights- Article 1-2- European Convention on Human Right—Criminal Tribes Act, 1871 as amended in 1936—Tamil Nadu Government discrimination of society—Sexual Offence Act, 1967—petitioner NGO challenged constitutionality of Section 377 Indian Penal Code stating it violates Article 21, 19, 15,14 through civil writ petition—founded upon the plea that Section 377 Indian Penal Code infringes said articles when sexual acts between consenting adults in privates—held—So far consensual sexual acts of adults in private Articles 21, 14, 15 of Constitution of India is violative—Section 377 Indian Penal Code will continue to govern non-consensual penile non-vaginal sex involving minors. ---- Sexual Offenders Act, 1967—Decriminalized homosexuality act of sodomy between consenting adults -- Indian Penal Code- Section 377- Constitution of India- Article 21—section if infringes right ti life, protection, dignity, privacy—Any law interfering with the personal liberty of a person must satisfy triple test propounded under Articles 14,19, 21 of the constitution—Human dignity forms part of our constitutional culture—Constitution did not refer right to privacy expressly but can be traced under Article 21 –right to life—Right to privacy is a part of right to life- right to privacy to be implicit in the right to life and the liberty guaranteed to the citizen of India by Article 21—It is a right to be left alone SCC page 632] invasion on that precinct is breach of privacy—Section 377 denied a person’s dignity—Criminalizes his/her core identity covenant solely on account of his/her sexuality thus violates Article 21 of the Constitution of India—Section as it stands denies a gay person right to full personhood which is implicit in notion of life under Article 21 Constitution of India- Section 377 Indian Penal Code grossly violates the right to privacy and liberty embodied under Article 21 in so far criminalizes consensual sexual acts between adults in private.-- Constitution of India—Article 21 & 12—The International Convent on Economic, Social and Cultural rights V. Section 377 Indian Penal Code and the HIV/AIDS prevention—Indian Constitution in the light of Article 12 of the International Convent, as held by Supreme Court, the right to health inhered in the right to life under Article 21- Section 377 acts as a serious impediment to the successful public health and intervention—Due to fear of law same-sex behavior persons to keeps invisible—Unreachable—Pushing the case of infection under ground making it very difficult for public health workers to access them—Sexual Practice of MSM/ gay community are hidden because they are subjected to criminal action.-- Indian Penal Code – Section 377--- Law Commission of Report of India, 1972—Section 172—Sexual Offence- Commission recommended deletion of Section 377 Indian Penal Code be effective recommended amendments in Section 375 Indian Penal Code along with Criminal Procedure Code, 1973 as well as Indian Evidence Act, 1872. --- Constitution of India—Articles 14 v. Section 377 Indian Penal Code—article 14 forbids class legislation but not reasonable classification public morality—Not a province of criminal law- Section 377 makes no distinction between ‘acts engaged in public sphere’ and ‘acts engaged in private sphere’- Between consensual and non-consensual acts between adults—Consensual acts between adults in private dos not cause any harm to anybody—Public animus—Disgust towards a particular social group/ vulnerable society is not a valid ground for classification under Article 14—Section 377 targets homosexual community asa class- National AIDS control Organisation specially stated that enforcement of Section 3777 adversely contributed to pushing the infliction underground—making risky—Sexual Practice go unnoticed—hampering prevention of HIV/AIDS state interest must be legitimate and relevant for legislation to be non-arbitrary and proportionate towards achieving state interest—Referring Declaration of People on Equality 2008—Equal right Trust—Court held Section 377 has effect of viewing all gay men are criminals – They are subjected to extensive prejudice—Discrimination caused to MSM & gay community is unfair and in breach of Article 14 of Constitution of India. --- Constitution of India—Article 15 & Section 377 Indian Penal Code- Right to equality is found under Article 14 where in article 15 prohibits discrimination on the several grounds enumerated including sex—Article 14 is genus while articles 15 & 16 are spices in Doctrine of Equality—Question is sexual orientation is a ground analogous to sex and that discrimination on the basis of Sexual orientation is not prohibited under Article 15—Article 15 incorporates the notion of horizental application of rights—validity of a legislation is tested by clause contained in Article 14,15 and burden is on state- Relying 2008 SCC 1: Anuj Garg’s Case where a law discriminates on any of the prohibited grounds—It needs to be tested not merely against the reasonableness under Article 14 but to be subject to strict scrutiny—Section 377 Indian Penal Code criminalizes acts of sexual minorities—runs counter to constitutional values—MSM/GAY mensolely on sexual orientation- What is considered to be cornerstone of our constitution—Section 377 is in application to sexual acts of consenting adults in private is discriminative to a section of people solely on this sexual orientation—Amounts to prohibition on the rounds of sex- Held: section 377 Indian Penal Code—In so far it criminalizes consensual sexual acts of adults in private in concerned- violative of Articles 21,14, 15 of Constitution of India—Section 37 will continue to govern non-consensual penile—Non-vaginal sex and penile non-vaginal sex involving minors – held: It is clarified that Judgment will not result in re-opening of criminal cases involving Section 377 Indian Penal Code that ahs already attained finality.--- Words & Phrases—Adult-Everyone who is above 18 years of age.—Words & Phrases- Consent—Person below 18 years would be presumed not to be able to consent to a sexual act.—Words & phrases- Carnal Intercourse—used in Section 377 Indian Penal Code- Distinct form expression sexual intercourse as is under Sections 375 & 497 Indian Penal Code. --- Words & phrases—carnal—Means of flesh or body—Words & phrases—gay Community—Men who have sex with men homosexuals—gay person/Community.-- Words & phrases—Un-natural—Orifice of mouth is not meant for sexual/carnal intercourse . --- Words & phrases—Unnatural Offence—Unnatural sexual Acts has not rational nexus to the classification created between procreative and the non-procreative sexual act.-- Words & phrases—LGBT- Lesbian, Gay, Bisexual, Transgender".
• Section 309 metes out punishment for an unsuccessful attempt to suicide. In September 2011, Government of India indicated that it is considering to amend this section and to decriminalize suicide attempts. The Government was responding to a PIL filed in the Supreme Court.

In 2003, the Malimath Committee submitted its report recommending several far-reaching penal reforms including separation of investigation and prosecution (similar to the CPS in the UK) to streamline criminal justice system. The essence of the report was a perceived need for shift from an adversarial to an inquisitorial criminal justice system, based on the Continental European systems.