Decriminalization of Offence

What is Decriminalization?:
Decriminalization takes away the status of criminal law from those acts to which it is applied. This
means that certain acts no longer constitute criminal offences. Following decriminalization, the act
still is illegal, but those acts are no longer criminal offences. However, administrative sanctions
can still be applied; these can be a fine. In contrast, legalization is the process of bringing within
the control of the law a specified activity that was previously illegal and prohibited or strictly
regulated.
There are two forms of decriminalization policies, de facto and de jure. Under a de facto
decriminalization framework, an administrative decision has been made to not prosecute certain
acts. Since there is no legislative change, possession technically remains illegal, but is assigned a
low priority by the State. In contrast, de jure decriminalization involves amendments to criminal
legislation.
The idea behind decriminalization is to respect human rights by promoting social inclusion and to
reduce socio-economic costs of criminalization on the individual.
Legalization and decriminalization refer to different ways that a government can approach the
regulation of an activity. Both legalization and decriminalization can be used to reduce the harms
associated with criminalizing certain activities or substances, but they take different approaches to
doing so.
Decriminalization of Attempt of Suicide (S. 309 IPC):
Attempted suicide is a serious problem requiring mental health interventions, but it continues to be
treated as a criminal offence under the section 309 of Indian Penal Code. The Mental Health Care
Bill, 2013, still under consideration in the Rajya Sabha (upper house), has proposed that attempted
suicide should not be criminally prosecuted. Decriminalization of suicidal attempt will serve to cut
down the undue stigma and avoid punishment in the aftermath of incident, and lead to a more
accurate collection of suicide-related statistics.
According to Article 21 of the Indian constitution, “No person shall be deprived of his life or
personal liberty except according to procedure established by the law”. While the constitution
covers the right to life or liberty, it does not include the ‘right to die’. The attempts at taking one’s
own life are not considered to fall under purview of constitutional right to life.
Section 309 of the Indian Penal Code (IPC) clearly states as follows: “Whoever attempts to commit
suicide and does any act towards the commission of such offence, shall be punished with simple
imprisonment for a term which may extend to one year or with fine or both.”
In State v. Sanjaya Kumar Bhatia, 1986 (10) DRJ 31 case the Delhi High Court acquitted the
accused who had attempted to commit suicide. The court emphasized the fact that Section 309 of
IPC should be deleted from the statute i.e. opined for its decriminalization. The court stated it as
‘unworthy of society’.
In State of Maharashtra v. Maruti Satpati Dubal, 1987 (1) BomCR 499 case, theBombay High
Court considered the question of inclusion of the right to die under the purview of right to life for
the first time. The court observed that all the efforts to prevent suicide by deterrence by punishing
the person who has attempted the suicide are in vain. The court stated that a person who has
attempted suicide is already in enough torment either physically or mentally, locking that individual
behind bars will only aggravate his/her level of mental or physical agony. What one requires is
medical attention or treatment. Therefore, the court struck the Section 309 of the Indian Penal Code
as unconstitutional on the ground that it violates Article 14 (Right to Equality) and Article 21
(Right to Life and Personal Liberty) and held that Article 21 also includes the right to die.
In Chenna Jagdeshwar v. State of Andhra Pradesh, 16 April, 1987 case the Andhra Pradesh
High Court held thatthe right to life under Article 21 does not include right to die and hence Section
309 is not in violation of Article 19 and 21 of the Indian Constitution.
In P. Rathinam v. Union of India, AIR 1994 SC 1844 case, two judges bench of the Supreme
Court took cognizance of the relationship and contradiction between Section 309 of the Indian
Penal Code and Article 21 of the Indian Constitution. The court supported and upheld the view of
Delhi and Bombay High Courts and overruled the view of Andhra Pradesh High Court stating that
the Section 309 of the Indian Penal Code is unconstitutional on the ground that it violates Article
14 and 21 of the Indian Constitution. The court termed the provision as ‘cruel and irrational’.
In Gian Kaur v. State of Punjab, AIR 1996 SC 946 case, five judges bench of the Supreme Court
overruled its earlier decision in Rathinam Case and held that Section 309 is constitutional and it is
not violative of Article 14 or Article 21.

The Law Commission in 1971 and 2008 had recommended scrapping of Section 309. Besides, the
Supreme Court in Common Cause v. Union of India and another case in 2018 had recommended
Parliament consider decriminalizing the offence, saying the provision had become anachronistic.
It had made the observation while issuing guidelines with respect to passive euthanasia.
Section 115 of the Mental Healthcare Act, 2017 decriminalized the attempted suicide. The
Provision is as under:
Presumption of severe stress in case of attempt to commit suicide:
1. Notwithstanding anything contained in section 309 of the Indian Penal Code (45 of 1860)
any person who attempts to commit suicide shall be presumed, unless proved otherwise, to
have severe stress and shall not be tried and punished under the said Code.
2. The appropriate Government shall have a duty to provide care, treatment and rehabilitation
to a person, having severe stress and who attempted to commit suicide, to reduce the risk
of recurrence of attempt to commit suicide.
Decriminalization of Adultery:
According to Section 497 IPC, 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, such sexual intercourse not amounting to the offence of rape, is guilty of the offence
of adultery, and shall be punished with imprisonment of either description for a term which may
extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an
abettor.
Thus, Section 497 IPC criminalised adultery. it imposed culpability on a man who engages in
sexual intercourse with another man’s wife. Section 497 IPC was inapplicable when a married
man engaged in sexual intercourse with an unmarried woman.

Essential ingredients of section 497 of the Indian Penal Code, 1860:-

• Person must committed sexual intercourse with the wife of another man;
• The person must have knowledge or has reason to believe that the woman is another man’s
wife;
• Her husband has not given consent or connivance for sexual intercourse;
• Such sexual intercourse not amount to offence of rape;
• Woman’s consent or willingness is not excuse to the crime of adultery.
According to Section 198 of the Criminal Procedure Code, 1973, no Court shall take cognizance
of the offence (adultery) under this section except upon a complaint made by the husband of the
woman or in absence of husband if another person who had care of such woman on the behalf of
the husband then such person made with the leave of the court if the adultery was committed at
that time.
Under section 497 of the Indian Penal Code, 1860 woman was not considered even as an abettor
and probably the rationale behind not punishing the woman was that patriarchal perspective of
seeing the woman as she is the property of the husband and also there was no remedy available to
the wife if her husband commits adultery because Section 497 IPC only talks about punishing the
other man who has sexual relationship with his wife, only one remedy is available to the wife that
is divorce.
Similarly, According to Section 198(2) of the Criminal Procedure Code, 1973, only husband is
allowed to bring charge against the person who commits adultery with his wife but under this
section wife is not allowed to bring charge if his husband commits adultery with another woman.
Section 497 IPC, exclusively governs the ostensibly shady behaviour of the man who commits such
a crime, while exonerating the woman involved voluntary behaviour. Similarly, the advantage of
such a statute does not apply to the wife whose husband commits such an offence with another
woman. Thus, the provisions were affecting individual dignity and equality and hence
unconstitutional.
In Joeseph Shine v. Union of India, 27 September, 2018 case, a five judge bench of Supreme
Court headed by the Chief Justice of India Deepak Mishra declared section 497 of the Indian Penal
Code, 1860 unconstitutional and struck down the penal provision.
The Court further held that Section 497 disregarded substantive equality as it reaffirmed the idea that women
were not equal participants in a marriage, and that they were not capable of independently consenting to a
sexual act in society and a legal system that treated them as the sexual property of their spouse. Therefore,
this Section was held to be in violation of Article 14. The judges also held that Section 497 was based on
gender stereotypes and in doing so, contravened the non-discrimination provision of Article 15. Further, it
was held to be violative of Article 21 as it denied women of the constitutional guarantees of dignity, liberty,
privacy and sexual autonomy.
The Court noted that adultery remained a civil wrong and a valid ground for divorce and although it was no
longer criminalized. It stated that criminal offences were committed against the society as a unit, while
adultery fell under the umbrella of personal issues. In treating adultery as a crime, the Court held that the
State interfered with people’s personal lives and crossed over into the private realm and subsequent to the
act of adultery, the husband and the wife should be allowed to make a mutual decision based on their
personal discretion.
 Decriminalization of Homosexuality (S. 377):
Section 377 refers to unnatural offence and says whoever voluntarily has carnal intercourse against
the order of nature with any man, woman or animals, shall be punished with imprisonment of either
description for a term which may extend to ten years and shall also be liable to pay a fine. Thus,
Section 377 of the IPC categorized consensual sexual intercourse between same sex people as an
“unnatural offence” which is “against the order of nature”. Unnatural offences cover all
homosexuality offences as well as the non-consensual penile non vaginal sex and penile vaginal
sex involving minors.
As per the explanation provided under this section penetration is sufficient to constitute the carnal
intercourse. This section corresponds to the offences of sodomy and bestiality under the English
law. As evident from the language of this section, consent is wholly immaterial in the case of
unnatural offences and the party consenting would be equally liable as an abettor.
The criminalization of homosexuality, by condemning into perpetuity an entire class of people
forces them to live their lives in a shadow of harassment, humiliation, and degrading treatment at
the hands of the law enforcement machinery, further denying them the right to a full moral
citizenship.
In Naz Foundation v Government of Delhi, (2010) Cri LJ 94 (Delhi) case, it was argued that
Section 377 on account of covering consensual sexual intercourse between two adults in private, is violative
of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution. It was also contended
that Article 21 can be curtailed only in case of compelling state interest which is missing in this case. The
petitioner also contended that the legislative intent behind section 377 is based on stereotypes that are
outmoded and have no historical or logical backing. They also argued that the expression “sex” as used in
Article 15 also includes “sexual orientation” and thus according to Article 15 there can be no discrimination
on the basis of sexual orientation. Broadly they prayed before the court that section 377 of IPC should be
declared ultra vires to the constitution, insofar it criminalizes consensual sexual acts of adults. The court
accepted all the contentions of the petitioners and declared the part of section 377 ultra vires which
criminalised consensual sexual acts of adults in private. However, the court also ruled out that the provisions
of section 377 will still continue to govern non-consensual penile non-vaginal sex involving minors.
This order of the Delhi High Court was challenged before the Supreme Court in the case of Suresh
Kumar koushal and another v Naz Foundation & others, AIR 2014 SC 563 by groups of
religious bodies and individuals including the All-India Muslim Personal Law Board, the Apostolic
Churches Alliance and the Utkal Christian Council. They contended that section 377 was enacted
by the legislature to protect social values and morals. The Supreme Court accepted this contention
and set aside the order of the High court.
The court stated that every legislation enacted by the Parliament or State legislature carries with it
a presumption of constitutionality. This principle also applies to pre-constitutional laws. If no
amendment is made to a particular law it may suggest that the legislature deems it fit and leave the
law as it is. Post-independence almost 30 amendments in the IPC have been made in the IPC
including amendments in the chapter of sexual offences under which unnatural offences fall.
However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament,
which is undisputedly the representative body of the people of India, has not thought it proper to
delete the provision”. The court ultimately declared section 377 to be constitutionally valid.
However, the court left it opens for the Legislature to delete or amend the law. The Naz foundation
has filed a curative petition challenging this judgement of Supreme Court. The matter is sub judice
before the Supreme Court. However, as of now, section 377 is constitutionally valid and
homosexuality is treated as an unnatural offence. Since, this section is operative as of now it
becomes pertinent to see the sentencing policy in cases of unnatural offence.
The AIDS Bhedbhav Virodhi Andolan (ABVA) on 11th August 1992, had protested against all
the harassment and criminalization of the suspected homosexuals under sections 72 and 73 of the
Delhi Police Act. In the same year, many petitions were sent to the petitions committee of the
parliament seeking for the decriminalization of the same by repealing Section 377 of IPC.
However, in 1994 after filing a petition to repeal section 377 of IPC and also challenging the act of
non-supply of condoms to the jailers present in Tihar Jail, New Delhi. The authorities in spite of
knowing the homosexual activities being carried out in that jail ignored their request to be provided
with condoms. This was violating the whole purpose of NGOs promoting the prevention of
HIV/AIDS.
From here on there were a series of cases, fighting the battle against section 377 of IPC, 1860. Even
after the constant filing of a petition by AVBA to decriminalize section 377 it was ignored to be
heard and due to this, there was a death of a jailer who was suffering from AIDS. There was much
opposition who were of opinion that homosexuality was not relevant to Indian culture and thus
should not be encouraged. Also many argued that sex amongst homosexuals would lead to the
spread of AIDS in the country. But the NGOs consistently pleaded that in fact not allowing the
homosexual activities freely would cause AIDs which they were hoping to reduce and prevent by
allowing the LGBT community the right to have consensual freely and in safe manner.
The Supreme Court on January 5th, 2018, formed a Constitution Bench to hear the challenge to
Section 377 in a comprehensive manner, even though the curative petitions were pending before
the Court. This could be due to the observations made in the nine-judge decision in the Right to
Privacy case which hinted at the inherent wrongness of the reasoning and decision in Suresh
Koushal. The five-judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice
D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra heard the matter from July
10th, 2018.
On September 6th, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal
Code, decriminalizing same-sex relations between consenting adults. LGBT individuals are now
legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section
377 that criminalize non-consensual acts or sexual acts performed on animals.
The four judgments unanimously cited fundamental rights violations in reading down Section 377.
They found that Section 377 discriminates against individuals on the basis of their sexual
orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they
ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under
Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their
identity, by violating the right to freedom of expression under Article 19(1)(a).
Conclusion:
Decriminalization represents a progressive shift in legal and social policy, aiming to distinguish
between harmful criminal behavior and conduct that can be better addressed through civil,
administrative, or health-focused approaches. By removing criminal penalties for certain acts—
such as drug use, consensual adult relationships, or homelessness—societies can reduce the burden
on the criminal justice system, mitigate stigma, and promote more effective, compassionate
responses. However, decriminalization must be implemented with careful consideration of cultural,
social, and legal contexts to avoid unintended consequences. Ultimately, it is not a blanket solution,
but a step toward a more equitable and humane legal framework that prioritizes rehabilitation,
public health, and social justice over punitive measures.
The regulatory offences to be considered for ‘decriminalization’ need to be prioritized not only
from the point of view of the ease of doing business, but also from the points of view of the ills
that plague our criminal justice system itself. If these faults are to be rectified, it is pertinent that
a more comprehensive exercise is undertaken and that the government prioritise the needs and
requirements of the criminal justice system. The time is now ripe to shift focus to existing penal
offences as well. There is an urgent need to assess these offences on a principled basis.