Context:         

The Section 377 of IPC has been under discussion after recent Supreme Court verdict on the “Right to Privacy”.

Introduction:

  • The nine –judge Constitutional Bench of the Supreme Court on Thursday ruled that individual privacy is intrinsic to life and liberty and an inherent part of the fundamental rights enshrined in the Article 21 of the Constitution.
  • The ruling has a bearing on the constitutional validity of Section 377 of the Indian Penal Code (IPC) which criminalises acts “against the order of nature.

What is section 377 of IPC?

  • Section 377 of IPC — which came into force in 1862 — defines unnatural offences. It says, “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 10 years, and shall also be liable to fine.
  • Homosexual intercourse was made a criminal offense under Section 377 of the Indian Penal Code, 1860.

What is LGBT?

  • LGBT stands for lesbian, gay, bisexual and transgender and along with heterosexual they describe people’s sexual orientation or gender identity

What was Supreme Court verdict on homosexuality in the privacy judgment?

  • The Supreme Court, in its judgment on privacy, said that right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed byArticles 14, 15 and 21 of the Constitution.
  • The court noted that sexual orientation is an essential attribute of privacy, and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
  • “That a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgender is not a sustainable basis to deny the right to privacy,” the Supreme Court said in its judgment.
  • “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular,” the nine-judge bench observed.
  • The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be “so-called rights”, the court noted.
  • The court held the 2014 verdict upholding section 377 of the Indian Penal Code is flawed.
  • The apex court held that discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity of individual.
  • The court’s judgment reinforces the Delhi High Court judgment in the Naz foundation case as the correct constitutional position.

What implications the ruling would have on Section 377?

  • Five judges including Chief Justice Khehar, held that sexual orientation is part of a person’s fundamental right to privacy.
  • Four justices, J Chelameswar, SS Bobde, Abhay Manohar Sapre, RF Nariman and Sanjay Kishan Kaul, didn’t dissent from the five judges who spoke on sexual orientation as a facet of privacy.
  • The bench cleared the way for decriminalizing homosexuality.
  • The judgment gives a new lease of life to the prolonged fight to decriminalize Section 377 of the IPC, a colonial-era provision criminalizing consensual sexual acts of LGBT adults in private.
  • In 2016, the court had agreed to set up a five –judge Bench to hear a batch of curative petitions challenging section 377 as a threat to the right to privacy and dignity, resulting in gross miscarriage of justice.
  • The judgment has made it clear that LGBT citizens like anyone else enjoy not just the right to privacy, but right to equality, right to free expression and right to life.

What were the developments in section 377?

  • In 2009, the Delhi High Court decision in Naz Foundation Govt. of NCT of Delhi found Section 377 and other legal prohibitions against private, adult, consensual, and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian Constitution.
  • On 23 February 2012, the Ministry of Home Affairs expressed its opposition to the decriminalization of homosexual activity, stating that in India, homosexuality is seen as being immoral.
  • On 28 February 2012, The Central Government reversed its stand and stated that there was no legal error in decriminalizing homosexual activity.
  • On 11 December 2013, the Supreme Court set aside the 2009 Delhi High Court order decriminalizing consensual homosexual activity within its jurisdiction.
  • In 2013, when the Supreme Court sounded out Parliament to read down section 377, the political leadership ducked.
  • Two years later, a majority of lawmakers blocked even any discussion on a bill brought by Congress MP Shashi Tharoor to scrap the section.
  • On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.
  • On December 18, 2015, Shashi Tharoor, a member of the Indian National Congress party, introduced the bill for the decriminalization of Section 377, but the bill was rejected by the house by a vote of 71-24.
  • On February 2, 2016, the Supreme Court decided to review criminalization of homosexual activity.
  • In 2016, Kerala mooted free sex-reassignment surgeries in Government hospitals after it introduced the first State government policy on transgender people.
  • In February 2017, the Ministry of Health and Family Welfare introduced resource material relating to health issues to be used as a part of a nationwide adolescent peer-education plan called Saathiya. Among other subjects, the material discusses homosexuality.
  • The text states the fact that it is quite normal to fell attracted for a friend or any individual of the same or opposite sex.

What is the historical background of section 377?

  • Section 377, titled “unnatural offences” was enacted by the British after the first War of Independence in 1857.
  • Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.

What is the scope of section 377?

  • Section 377 penalises non-procreative sexual acts and any act of sexual perversity, as has been interpreted by different courts.
  • Though, it applies to all persons, homosexual and heterosexual, it has been targeted at gay men.

What are the loopholes of section 377?

  • The worst aspect of Section 377 is at the individual level. It makes gay men feel like lesser human beings because they are seen as criminals by law. That impairs not only their dignity, but forces them to go into the closet.

What are the laws related to Section 377?

  • The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009), held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people. This judgment lifted the criminal restrictions on gay men.
  • The Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) set aside the Delhi High Court judgment. The Koushal judgment did not notice that the rape law itself had changed whereby instead of mere restriction on penile-vaginal non-consensual sex, it now includes a range of sexual activities, including digital and object penetration.
  • The Supreme Court in its 2014  in National Legal Services Authority vs. Union of India case, asked the government to take steps for the welfare of transgender persons and to treat them as a third gender for the purpose of safeguarding their fundamental rights.

What are the provisions of Transgender Persons (Protection of Rights) Bill, 2016?

In order to ensure the rights to LGBT community, the government has passed the bill with the following features:

  • The Bill defines a transgender person, and transgender person must obtain a certificate of identity as proof of recognition of identity as a transgender person and to invoke rights under the Bill
  • The Bill prohibits discrimination against a transgender person in areas such as education, employment, and healthcare
  • It directs the central and state governments to provide welfare schemes in these areas.
  • Offences like compelling a transgender person to beg, denial of access to a public place, physical and sexual abuse, etc. would attract up to two years’ imprisonment and a fine
  • Provision of creating separate National Council for Transgenders for monitoring transgenders’ issues
  • The bill recognizes the right of transgender to live with family, share and enjoy all facilities in non-discriminatory manner.

 What need to be done to ensure LGBT Community rights?

  • Most people gained independence from the British, the LGBT community, and gay men in particular, in India have remained chained to Section 377.
  • It is high time that the chains are broken and we get rid of Section 377 so that gay men and the LGBT community can live their lives with dignity.

Conclusion:

  • The Supreme Court will review the decriminalization of homosexual activity under Section 377 of IPC. The Supreme Court may draw inspiration from the recent verdict of primacy of privacy which has been recognized as one of the Fundamental Rights.
  • India as the world’s largest democracy may also take inspiration from the world’s youngest democracy Nepal – which has included non-discriminatory laws for the community in its constitution. With this step, Nepal became the first ever Asian country and third country in the world after South Africa and Ecuador to provide full protection to the LGBT people in its constitution.
Print Friendly, PDF & Email

Did you like what you read?

Enter your email address below to get all our updates in your inbox the moment it is published. Once you enter your email address, you will be subscribed immediately.


We do not spam you, so you can easily unsubscribe anytime, by clicking on unsubscribe link in the email.