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Section 377 : A Reality Needs to be Accepted

6 September 2018 marked as a historic date in Indian legal history whereby the Supreme Court put India into a group of 125 countries where homosexuality is legal. However, 72 countries still practice homosexuality as illegal. Homosexuality is defined as a term whereby sexual relations are developed between the same sex that is a male indulging into sexual relations with another man or a female indulging into sexual relations with another female. Supreme Court struck down section 377 of IPC (Indian Penal Code) providing a huge boost to the LGBT community in India. As per section 377 “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment of life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”[1]. Supreme Court decriminalized section 377 IPC in the case of ‘Navtej Singh Johar v. Union of India’. Court observed that sexual orientation as a “natural and inherent” biological phenomena and is not a matter of choice. Court pronounced same-sex relations as not punishable but sex with the animals as an offence. While reading the judgement former Chief Justice of India Dipak Misra pronounced that the court found that “criminalizing carnal intercourse” to be “irrational, arbitrary and manifestly unconstitutional”. Going back to 2009, Delhi High Court, however, took an initiative and decriminalized homosexuality among consenting adults but in December 2012 Supreme Court quashed the High Court order. On 2015 in Lok Sabha Shashi Tharoor also introduced a bill to decriminalize homosexuality but the government doesn’t took any further initiative to look into the matter due to which many activists started to take participation. A petition was filed claiming their rights to sexuality, sexual autonomy, privacy etc. along with the rights guaranteed under Part III of the Constitution which are violated by section 377 IPC. Section 377 was struck down as it violates the fundamental rights of the individuals. Four of the following fundamental rights were violated:

  • Article 21 which talks about the Right to Life and Personal Liberty. So Article 21 is violated in respect of the privacy concerns. Mentioned Right to Privacy under Article 21 talks about that the person can enjoy his/her privacy as it would their right to live a dignified life. The verdict on privacy in 2017 also highlighted that choice of a person to have sexual orientation is an important part of his/her privacy so it would be a violation of fundamental right to criminalize what homosexuals do in private.
  • Article 14 which talks about right to equality and equal protection before law. Discriminating homosexuals on the grounds such as morality would be the violation of this fundamental right.
  • Article 15 which talks about prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. So discriminating any person on the ground of his/her sexual orientation would be a violation of this right.
  • Article 19(1) (a) which talks about freedom of speech and expression. This right implies that every citizen has the right to express his/her views, opinions etc. Also in 2014 Supreme Court held that right of freedom of speech and expression includes the right to express one’s identity through dress, words, action etc.

[1] INDIAN PENAL CODE sec. 377

This article is authored by Munis Nasir, student of Bachelor of Laws (LL.B) (Hons.) at Jamia Hamdard University, New Delhi

Also Read – Writs – A Tool To Protect Fundamental Rights Of Citizens

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