Posted April 06, 2019 12:04:29 The next hearing on the constitutionality of Section 377A of the Indian Penal Code (IPC) is scheduled to begin in a couple of days.
The issue has come up several times in the Supreme Court in recent months, with several petitions being filed seeking the amendment of the IPC.
In May this year, the apex court had directed the Centre to provide information to the Centre on how to handle the cases of people who are living in the country illegally.
In March this year too, a similar petition was filed in the apex Court, seeking an amendment to the ICP.
In its judgement on May 2, the bench of Justices S.P. Ramachandran and Rohinton Fali Nariman had observed that Section 377(A) is a criminal offence.
The court said, “This section deals with the illegal entry into a place of prostitution, or the illegal taking of a woman into a room where she is not allowed to be”.
The bench, however, said the provision was “intended to protect women from sexual assault by men who are also involved in the illegal act of taking a woman, and not to protect them from a man who is in a position to do so”.””
We note that the Supreme Bench observed that the POCSO Acts have no effect in regard to Section 377 (A) of IPC, which criminalises only the offence of prostitution”.
The bench, however, said the provision was “intended to protect women from sexual assault by men who are also involved in the illegal act of taking a woman, and not to protect them from a man who is in a position to do so”.
“In the course of this discussion, we have made reference to the ‘POCS Act’, which prescribes penalties for the offenders under Section 377B of ICP,” the bench observed.
The court also observed that it was important to keep in mind the fact that Section 375 of the POH Act, 1950 (CIV), which deals with “prostitution”, had a section which prohibited a person from engaging in sexual activity with a woman if he is in possession of “sexual information or sexual gratification”.
“Section 375 also prescribes penalty for persons who wilfully cause to be divulged or disseminated any such sexual information or gratification.
Thus, we may think of this section as a provision against dissemination of any such information or gratuity,” the Bench said.
The Bench also said that in cases of “propriety”, it had not found the provision applicable to “sexual gratification”.
In its judgment on April 6, 2019, the Supreme Judicial Council had observed, “Section 377A is not an offence against the persons in the State who are legally married or unmarried, nor against the parents of children who are unmarried or who are not living in India.
It is merely a prohibition against an act of prostitution.
It has no nexus with the offence under the Prevention of Child Marriage Act, 1976 (PCMC).”
The apex court’s judgement has also sought the Centre’s response on a petition filed by the Centre for the amendment to Section 375.
It had earlier issued notices to the Delhi government and the Centre government for their responses to the petition.
However, in a fresh order, the court has directed the government to furnish details about the provision of Section 375 and if necessary, a clarification of the relevant provisions.
“A person, who has committed a criminal act under Section 376 of Ipc shall be punished with imprisonment for a term which may extend to five years and the punishment may be enhanced if the court finds that the commission of the offence is such that the penalty imposed under the section should not be less than imprisonment,” the apex order said.
Section 375A is a provision of the PCMC which prescopes punishment for the commission by a person of a criminal activity under Section 354, 354A, 355, 356 or 358 of IPRP, the SC bench had said in its judgement.
In its order, it had also directed the Government to furnish the details about Section 375A and if the government did not provide the details within 60 days, it would be ordered to furnish them.