Section 377 of the IPC

BY:–DIVYA BHAGIA

INTRODUCTION

  • LGBTQI (lesbian, gay, bisexual, transgender, queer, intersex) community.

Homosexuality has been documented throughout history and across cultures. Its meaning and acceptance, on the other hand, varies widely depending on the social situation. Although LGBT individuals are now more visible and accepted than they were in the past.

Even in societies that are supportive and protective of the LGBTQ+ community’s rights, coming out as LGBTQ+ is never simple.

Accepting oneself is the first step, followed by asserting one’s individuality to the rest of the world.

Although judicial reform may provide a platform for people to speak out, social realities do not always move in lockstep.

Despite this, the majority of LGBT persons in India remain hidden, fearing discrimination from their relatives, who may regard homosexuality as a sin.

In rural places, discrimination still exists, with LGBT persons frequently facing rejection from their families and forced opposite-sex marriages.

Section 377

Atri Kar is a 28-year-old Kolkata schoolteacher. Kar, who came out as a transwoman in 2014, won a judicial battle in 2017 against the state of West Bengal to include the third gender in all application forms for all government jobs.

“I understood when I had sex reassignment surgery a few years ago that if you want to launch a revolution, you have to start at home,” she says “Kar continues.

  • ”How will I be able to persuade the rest of the world if I can’t even persuade the folks I grew up with?” 

People in the LGBT community are struggling for acceptance and equal rights. Trans people, in particular, have a hard time gaining acceptance. People in the LGBT community are often looked down upon. Discrimination against the LGBT community is rampant, so this is a huge issue.

Today, more Indian youngsters are accepting of homosexuality and queer identities than ever before, but acceptance inside the confines of families, homes, and schools remains a constant fight for LGBT people.

WHAT IS Section 377 in IPC?

The Indian Penal Code, Section 377, is 157-year-old colonial legislation that criminalised homosexuality in India.

The section was first adopted in 1864, while India was still a British colony. ‘Unnatural Offenses’ covered the wrongdoings done in respect to section 377.

Section 377 of the IPC states that anyone who engages in consensual carnal intercourse with a man, woman, or animal in a manner that is contrary to nature is guilty of a criminal offence.

The punishment for committing this crime is from ten years to life in jail, or the perpetrator may be required to pay a fine under section 377 of the Indian Penal Code.

This statute made all carnal and oral sex illegal, and the community that was most affected by the consequences of this rule was one of the same-sex relationships.

Furthermore, different human rights organisations have stated that the police have used this sector to mistreat and harass members of the LGBT community on numerous occasions.

DECRIMINALISING SECTION 377- CASE DESCRIPTION

Section 377 of the IPC categorised consensual sexual intercourse between same-sex people as an “unnatural offence” which is “against the order of nature”. It prescribed punishment of 10 years imprisonment.

The provision is a Victorian-era law, which survived into the 21st century. Interestingly, about 123 countries around the World have never penalized or decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex relations.

The Delhi High Court heard a case in which the Naz Foundation (India) Trust, challenged the legality of Article 377 under Articles 14, 15, 19, and 21.

Section 377, according to the Foundation, shows an archaic notion of sex’s purpose, mainly as a means of breeding, and has no place in modern society.

Furthermore, the provision has been weaponized by the police, obstructing efforts to stop the spread of HIV/AIDS.

In Lucknow in 2001, HIV prevention workers who were distributing condoms to homosexual males were detained on the charge of conspiring to commit an offence, according to the Foundation.

The Naz Foundation also claimed that the clause was being abused to penalise non-peno-vaginal consensual sex acts.

In 2009, the Delhi High Court held that Section 377 cannot be used to punish sex between two consenting adults since it violates Article 21 of the Constitution’s right to privacy and personal liberty.

The Supreme Court ruled that categorizing and targeting gays violates Article 14 of the Constitution’s equal protection provision.

As a result, Section 377 violates the Indian Constitution’s essential value of human dignity.

SECTION 377- CASE DESCRIPTION

The Delhi High Court’s decision was challenged in the Supreme Court by a number of organisations and individuals.

They maintained that the right to privacy does not include the freedom to commit any crime; decriminalising homosexuality would harm the institution of marriage and encourage young people to engage in homosexual behaviour.

In Suresh Koushal, the Supreme Court overturned a Delhi High Court judgement from 2013 and stated that the decision to decriminalise homosexuality can only be made by Parliament, not the courts.

It further stated that Section 377 criminalises certain behaviours rather than a specific group of people.

It also pointed to the LGBTI community‘s small number of members and the fact that only a small percentage of them had been convicted under Section 377.

Several curative petitions were filed in an attempt to overturn the Supreme Court’s decision.

While the curative petitions against Suresh Koushal were pending, five members of the LGBTQ community – noted Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath, and media person Sunil Mehra – filed a new writ petition to have Section 377 IPC repealed insofar as it criminalised consensual sex between same-sex individuals.

Even though curative petitions were pending before the Supreme Court on January 5th, 2018, the Court convened a Constitution Bench to consider the challenge to Section 377 in its entirety.

This could be owing to the points made in the nine-judge ruling in the Right to Privacy case, which hinted at the logic and decision in Suresh Koushal being fundamentally flawed.

From July 10th, 2018, the petition was heard by a five-judge bench consisting of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman, and Justice Indu Malhotra.

SECTION 377- CASE DESCRIPTION

On September 6, 2018, a five-judge bench partially threw down Section 377 of the Indian Penal Code, making same-sex relationships between consenting adults legal.

LGBT individuals are now legally allowed to engage in consensual intercourse.

The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.

In reading down Section 377, the four verdicts uniformly noted infringement of basic rights.

They discovered that Section 377 discriminates against people based on their sexual orientation and/or gender identity, in violation of the Constitution’s Articles 14 and 15.

They also found that Section 377 infringes Article 21’s rights to life, dignity, and personal decision autonomy. Finally, they discovered that it obstructs an LGBT person’s ability to fully realise their identity by infringing Article 19(1) (a)’s right to freedom of speech.

The Landmark Judgment

The Supreme Court’s five-judge Constitution Bench issued a landmark decision on September 6 last year, reading down the provisions of Section 377 of the Indian Penal Code and decriminalizing consensual same-sex relationships.

For a better understanding of the Supreme Court’s decision in the case of Navtej Singh Johar v. Union of India, which involved section 377 of the Indian Penal Code.

The following aspects, the highlights of the case’s judgment, were spelt out by the court while delivering the ruling:

  • Section 377 of the IPC is arbitrary and unreasonable, and as a result, it may be knocked down in part because it criminalizes consensual sex between two adults.
  • The court did state, however, that engaging in any type of sexual conduct with animals is still a criminal offence under section 377 of the IPC.
  • Because sexual orientation is a biological phenomenon, any discrimination based purely on this basis would be considered a violation of persons’ fundamental rights.
  • LGBT people have the same fundamental and human rights as everyone else, and they are not to be discriminated against in any way.
  • It is the duty cast on the court to protect and uphold the dignity of each and every individual in the society, the right to live with dignity is a fundamental right granted to each and every citizen by the Indian Constitution.6
  • Section 377 of the IPC was indeed utilized to harass members of the LGBT community, and they were treated differently from ordinary citizens who would no longer exist.

CONCLUSION

Though it had been a long and winding route, the triumph delivered by a constitutional court was certain to stand. The triumph is now firmly ingrained in our society, especially among the young, who will experience a changing world, thanks to the mobilization of the communities.

Because India is such a large and diverse country, people’s perceptions and experiences with LGBTI people differ greatly.

The gap between urban and rural India, as well as language, caste, class, and gender add to the complexity of completely comprehending this subject.

However, we do know that India’s LGBT population is not a “minuscule minority.” They have a powerful voice that will not be silenced any longer in their fight for equality.

Despite the dissents and disfavour expressed in the course of the homosexuality judgement, it is usually viewed as a victory for the LGBTQ community, and it further supports the ideology that the country is moving into a dynamic phase and that age-old colonial practices no longer fit the current situation is being phased out.

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