THE CONSTITUTIONALITY OF SEC. 377

THE CONSTITUTIONALITY OF SEC. 377
Introduction:
The Indian Penal Code has been enacted in the year 1860. After its enactment 153 ago, lot of amendments, modifications were also made by the Supreme Court that suits the prevailing trends in the society. Sec. 377 of this Code deals about prohibiting unnatural offences.
That means, 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 fine.
In the recent judgment of Supreme Court, in the case of Suresh Kumar Koushal and another Vs. NAZ Foundation and others uphold the constitutionality of Sec. 377 of the Indian Penal Code, which has been widely perceived to have espoused a principle of judicial deference to Parliament. This view has forced a shift of focus amongst gay activists and right-thinking citizens to legislature, in the hope of corrective reform.

Matter of controversy:
Three main constitutional questions confronted the Court in this case:

1. Whether it violated Art. 14 of the Constitution?

2. Whether it violates the right of LGBT people to live with dignity?

3. Whether criminalizing private consensual acts between adults violates their right to privacy, also protected under Art. 21 of the Constitution?
Art. 13 of the Indian Constitution verbalized that All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. Art. 13 make the chapter of Fundamental Rights sacrosanct and thus secure the supremacy of the Constitution in this regard. If the Parliament enacts a law transgressing any of the limitations, the Supreme Court and the High Court are competent to declare the law unconstitutional or void.
Now in this regard, IPC Sec. 377 becomes the matter of controversy. Till 2000, there was no stumbling block to implement this section. The offences were also rare of the rarest cases. Not long ago, due to the influence of western culture, LGBT culture gradually steps into India.
To prevent the spread of HIV AIDS and other Sexually Transmitted Diseases as the intention, a charitable organization NAZ Foundation has been established. NAZ Foundation put forth an assertion that IPC has prohibited homosexuality; it has led to the increasing number of sexually transmitted diseases in the society. Therefore in 2001, it filed a petition before Delhi High Court to repeal Sec. 377.
After prolonged debates and arguments connected with Sec. 377, in 2009 July 2nd, the judgment was pronounced. It says

* Homosexuality is not at all erroneous;

* An adult without any discrimination as man/woman has the personal right to choose any person as their spouse;

* IPC Sec. 377 is ultra vires to the Constitution of India;

* The section violates Art. 14 and 21 of the Constitution;

* Experts like doctors, psychiatrists have concluded homosexuality is not at all a disease and we should not discriminate them as they are LGBT;

* It is also a basic human right.
Jolt across the nation:
After its enunciation, it has twisted a buzz all over the nation. Many people argued in favor and against this judgment. Judges, Doctors, Advocates, Actors/Actresses, Politicians, Laymen, etc started sharing their opinion as additional fuel in this burning issue.
Nation-wide arguments favoring it:

* England laid the foundation for IPC in India. Even they have accepted homosexuality rights for their citizens. Then why not in India?

* Let us just acknowledge that homosexuals are born with the natural tendency to prefer people of their own sex. If the rule is that opposite poles attract, every rule has an exception.

* Personal liberty is being made the scapegoat here, with a farcical argument of societal morality and decency.
But its also an acceptable point that homosexuality is against Indian Culture:

* Western winds are fast sweeping across India, a land of saints and sages.

* Once we accept, it will create drastic changes in the future of the heritage of our country. We have already given the go-by to the long-cherished ethos of this great nation, by accommodating something that is unnatural and perverse, in the name of personal preference.

* Homosexuality is but an acquired behavior that is caused by peer pressure, low self-esteem, and it is against family values too.
Now its all lies in the hands of our Parliament whether to accept or not to accept to decide the constitutionality of Sec. 377. Its for the legislators to delete or modify the Section as they deem fit.
But a point to be considered here is if any verdict pronounced against them, then homosexuals will henceforth find it very embarrassing to seek medical assistance openly. The law is only pushing them to engage in unsafe sex. The Supreme Court ruling may marginalize the LGBT community further.
The timeline of this NAZ Foundation case:
2001: Case has been filed before the Delhi High Court
2004, Sept.2: High Court dismissed the case. Review petition was filed again.
Nov.-Dec.: Review petition also dismissed. An appeal was made to Supreme Court.
2006, Apr. 3: Supreme Court again asked High Court to reinvestigate the issue as it is a matter of importance.
2008, Oct. 15: High Court ordered to produce the reports of Medical Experts regarding the scientific reasons behind the homosexuality.
Nov.: Central Government made a statement that Courts should not interfere with LGBT issues as the Parliament holds the authority to take decision.
2009, July 2: High Court ordered Sec. 377 is unconstitutional and it violates Art. 14 and Art. 21.
July 9: Again an appeal was made to Supreme Court against High Courts judgment by Social activists and other religious institutions.
2013 Dec. 11: Supreme Court dismissed the judgment of High Court by mentioning that Sec. 377 is an offence to be prohibited.
Dec. 20: Union Government made an appeal against the verdict of the Supreme Court.
Conclusion:
A combination of inadequate justification, sophistry and a woeful non-application of mind makes the unfortunate conclusion inescapable that the judgment ultimately rests on a deep-seated prejudice shared by the two judges that has no place in a legal judgment. For a proper legal adjudication of the issues raised, it is imperative that a review petition is filed and taken up by the Court speedily.
Abinaya Sakthivel

References:

* Criminal Manual Justice M.R. Mallick

* The Hindu Editorial column

* Constitution of India D.D. Basu

A comparison of courts of India, ex-USSR, China and USA:

A comparison of courts of India, ex-USSR, China and USA:
Indians courts are most nexused/nepotic/corrupt of ALL four

This note is to give a summary of comparison of nexus-prone-ness in courts in 4 countries - India, ex-USSR, China and USA. The word nexus includes corruption, nepotism, judge-lawyer nexus, judge-criminal nexus and elitist-lobbying. Most of the eminent intellectuals in India often deny existence of nexuses in judges. They blame it on bad political culture, moral values, national character
blah blah blah. The nexuses in Indian courts are higher than China, ex-USSR and USA because of the way decision-makers in courts are appointed and the way public prosecutors are appointed.

In 1956, PM Jawaharlal, the then Supreme Court judges and the eminent intellectuals removed the Jury System by using Nanavati case as reason. In my opinion their true motive are a matter of investigation.
Since then, Indian courts use exclusive judge system --- there are NO Jurors and no assessors in Indian courts.

Appointments of decision-makers in Indian courts:

1. The Magistrates are selected from existing lawyers via written exams followed by interviews by sitting or retired High Court judges.
The interviews carry substantial weight. The interviewers' panels are small and known in advance.
. intense nepotism, elite-lobbying and corruption 3. As per appointment of Sessions judges, some half are promoted from Magistrates and remaining half are direct appointees !! So a lawyer who has never given a written exam and never served as a Magistrate can very much become a Sessions judge, if he is close relative of High Court judge or has nexuses with High Court judges.
4. The Magistrates and Session judges are transferred or suspended by pure discretion of High Court judges nexuses prone.
5. The High Court judges are appointed by High Court judges and Supreme judges. Half the new appointees are promoted from Sessions judges and remaining half are direct appointees. So in High Court too, a person who has never given a written exam, never served a Magistrate and never served as Sessions judges 6. And new Supreme judges are all appointed by existing Supreme judges

Rampant elitist-lobbying and nepotism.

7. In selection of Magistrates, Sessions judges, High Court judges and Supreme judges in India, at no point, any external agency like Citizenry or Assembly are involved. Rampant elitist-lobbying and nepotism.

8. All Lower Court judges and High Court judges are appointed till they are 60 years ,and up to 65 years in Supreme Court. There is no five-year term and renewal term.. == Dense nexuss formation.

9. The Lower Court judges are transferred, but only within State. The High Court judges are seldom transferred nexuses with elitemen and lawyers.

Supreme Court judges are never transferred nexuses with lawyers,
national- level-elitemen and videshi-elitemen .

10. In India, the Public Prosecutors at Lower Court level, High Court level and Supreme Court levels are all appointed by Law Ministers and Chief Ministers using their personal discretion. There are NO elections or even written exams. So in appointment of Public Prosecutors too, nexuses play dominating role. Fortunately, PPs are appointed for 5 year term and so nexuses are not life-long unlike in judges.

11.At lower court level, decision makers are only 12000 Magistrates and 5000 Sessions judges, and they have term till they are 60 years old. So group size is small and churning is low more nexus prone Appointments of decision-makers in Chinese courts:
1.The lower courts in China have one judge and two assessors. The
assessors are appointed by Government and not elected but they are seldom repeated, cannot have career in Government and cannot be communist party members. So they come from general population. Their term is 2 years to 3 years and do not get repeated. There are 50000 courts and thus some 100,000 assessors. And every year, some 20000 to
25000 will leave their assessor position and new ones will come. Thus decision-makers in Chinese courts are large in number and churning is so high, that it is not easy for Chinese economic or political elite to form life-long nexuses and/or control them, compared to India.

2.Also judges in Chinese Lower Court are appointed via written exams,
and weight of interview is negligible. The interview is taken by broad panels and interviewers are selected at random, and so fixing is difficult, unlike in India, where interview-taking panel is known in advance and is as small as 3-5 persons, and there is no last-minute random allocation!!! After all, China invented system of "recruitment by written exams" hundreds of years ago in the days of Confucius.

3.The recruitment in High Court and Supreme Court in China is done by
boards appointed apex-political leaders. So while elite-lobbying is rampant, outright nepotism is less. Why? Because board has to pick High Court judges from Lower Court judges only, and there is NO direct recruitment. In Indian High Courts, some half the High Court judges are direct recruitees i.e. they have never served as Sessions judges.
And half the Sessions court judges are also direct recruitees i.e.
they have never served as Magistrates. So anyone with nexuses can become Session judge and anyone with more nexuses can become High Court judges. Whereas in China, High Court judges are taken only from Lower Court judges, and they must pass a written exam to become a Lower Court judge. So there is no nepotism in Lower Court level, and so less nepotism as High Court level too.So nepotism is less in appointment of High Court and Supreme Court judges, though political lobbbing is immense

Appointments of decision-makers in ex-USSR courts
1.Ex-USSR in Lower Courts used to have one judge and two assessors,
and assessors would be elected by citizens for a term for 2 yrs to 3 yrs. And they can get re-elected for up to 2 more terms. The judge was also elected and his term was 5 years, after which he would need fresh appointment. So while judge would be loyal to political elite, the assessors would be closer to people.
2.There were several assessors in a court, and each would work 2 week
a year. Hence there was a lot of churning at assessor level, so that no elite can control it.
3.In ex-USS, the citizens also had power to recall the judges and
assessors. So in ex-USSR courts, as people who have seen those courts say, that assessors were always willing to help people fill their forms, provide necessary legal guidance and would have staff ready to serve citizens as far as possible. And elite had no control over them, as they were recallable by citizens, So lower courts were very fair, and so crimes were low. Even a communist party senior (unless he is very senior) cannot expect to get-away if caught.
4.The judges and assessors had to give reports to public in mass open
meetings!! Imagine judges in India asked to give report to mass open meeting!!!
5.At High Court and Supreme Court level, appointments were done by
political elite. So nepotism was low, but political lobbying was intense.
6. Local public prosecutors were govt employees recruited by written exams, and not hand picked by political elite (like in India).


Appointments of decision-makers in USA courts
1.In lower courts, USA has mostly elected judges, and if appointed,
they are appointed by Mayor and approved by City Councilors or appointed by Governor and approved by MLAs. Election process is completely immune to nexuses, nepotism, elite control and corruption.
And when procedure involves appointment by one elected head and approval by elected councilors, the process becomes immune to nepotism but can be infected by lobbying.
2.Almost all districts have Right to Recall over judges.
3.Most districts have Public Prosecutors elected by people. And they
are recallable in most districts. Thats why PPs in USA are extremely helpful to citizens
4.Higher Court juddges have no say on transfer , appointment of lower
court judges. If the judge has acted in a criminal way, then only High Court judges can expel him. But otherwise, they have no control. So lower court judges and prosecutors are very independent. And jurors are independent by very nature.
So courts in USA are far far less nexused that courts in India, ex-USSR and also China.
Whereas Indian courts are most nexuss prone & nepotic. Chinese system and Russian system has similar amount of fairness. And lately, China is moving towards Jury System. Their Jury System is much weaker than USA. The pool of Jurors is not whole population, but population which meets some norms of education and also has to go a psychological screening test, which ensures that they are not hostile to Communist Party. They are some 10 lakh in number and increasing .So jurors are immune to elite-control due to large size. In other words, Chinese courts are better than Indian courts and will further improve.
The eminent intellectuals such as political-apex, newspaper columnists, CPM columnists, professors in political science dept, professors in law dept and etc are mum on informing students and commons about Jury System, assessor system (used in ChinaUSSR) , election of judges, right to recall judges, election of public prosecutors, RTR public prosecutors, RTR Police Commissioners as reason why courts in USA, China, USSR etc is better than courts in India. They all passed the blame on so called "Bad Political Culture"
.


Effects of unjust verdicts in society
If we dont fix the courts, the injustice from rich and non-rich criminals on to the bottom 99% of the citizens will keep on increasing. The cohesiveness of society decreases as members of elitemen and criminals throw more and more atrocities on commons. And the decrease in cohesiveness of society decreases the strength of administration. When individuals get rampant injustice in courts, they see no point in defending the nation and the society.

How does this impact level of engineering in the country?
The progress in engineering comes via innovations, and innovations which comes via competition and competition only. No amount planning in absence of competition helps. Not even IITs, NITs would help. For eg. India trains around 1.5 million engineers/ year, which is more than the US and China combined but still our local manufacturing is pathetic. The innovation can only come from competition between small industries and large industries.
Now if judge system is used to decide disputes, then the large companies will have easy way to crush new-coming small companies via spurious disputes. And this will reduce innovations. And engineering will suffer. No wonder why countries like Canada, US, UK, France, Denmark,Norway, Sweden, Finland, Germany, Spain, Portugal, Italy, Hong Kong, Australia and New Zealand which have Jury System had far more innovations on Engineering in past as well as present.

Conclusion :

Activist should seriously consider ways and means to reduce delay and also reduce nexuses in courts. Reducing delay is easy - by increasing number of judges and adding technology, the delay can be reduced. But reducing unfairnessnexus requires activists to put good amount of mind in comparing and contrasting judge system with jury system.

Engineering progress gets severely ill-effected by delay and unfairness/nexuses in courts. And that local weapon manufacturing depends on engineering progress. Local weapon manufacturing is very much linked with reducing crimes and corruption.When local weapon manufacturing declines, eventually, enemy nation takes over. And their violence and economic exploitation will be 100 times worse than crimes and corruption we are facing.

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Sources:

1.In ex-USSR, the citizens also had power to recall the judges and assessors. page 1124 , article-19 of http://books.google.co.in/books?id=n_w8t0UCFRgC
2.Appointments of decision-makers in ex-USSR courts:
http://books.google.co.in/books?id=n_w8t0UCFRgC
3. DD Basu
4. Jury System in US--
http://www.uscourts.gov/FederalCourts/JuryService.aspx
Name: Anurag Singh