The Supreme Court’s decision to refer to a larger Bench a writ petition to quash Section 377 of the Indian Penal Code, which criminalises homosexuality, has brought a ray of hope for LGBT community members.
- The Supreme Court in In Suresh Kumar Koushal v. Naz Foundation (2013) case, set aside the Delhi High Court judgment and said that homosexuality or unnatural sex between two consenting adults under Section 377 of IPC is illegal and will continue to be an offense.
- However, the Supreme Court recently referred to a larger Bench a writ petition filed by gay and lesbian members of the LGBT Community to strike down the colonial Section 377 in the Indian Penal Code of 1860, which criminalises homosexuality.
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.
- It is rooted in the legacies of British colonial states where in it was introduced by Lord Macaulay in 1860 as a part of IPC.
- According to the section “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished”.
- 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 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 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.
India’s position on issues related to LGBT rights at national and international fora.
At national level:
- On transgenders, Supreme Court has passed a landmark judgment , asking government to extend benefits to transgenders who are currently an oppressed minority.
- Some NGOs like NAZ foundation and social workers are fighting for the basic rights of LGBT for years.
- In July 2009, the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.
- India still retains Section 377 that criminalizes gay sex.
- In 2016, Five petitioners move SC over Section 377 and claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.
At international level:
- In 2008, India abstained from voting in the crucial UN declaration based on the Yogakarta principles which defined discrimination based on sexual orientation and gender identity, as a human rights violation.
- On international front, India voted against UN SG’s decision to extend marriage benefits to LGBT couples citing lack of consultation with member States and relation to “sovereignty issues” over UN’s admin and financial functions.
- Abstained from voting on a previous resolution on LGBT discrimination passed by UNGA in 2014.
- India abstaining from this vote revealed that it was not willing to pursue the cause as a human rights violation but was continuing to see it through the prevalent social equations in the country.
How Section 377 Violets fundamental rights?
Violation of fundamental rights:
- The section has been in news on account of violation of basic human rights, harassment and violence among the LGBT community.
- The section did not mentions even ‘voluntary’ acts as punishable under section 377. Section did not make any difference between male who commit rape on other male and two males having consensual sex.
- The declaration of all homosexual acts criminal, whether consensual or non consensual, is considering all homosexuals as sexual perverts, demeaning their dignity.
- The section does not take into account the sexual preferences of the individuals.
- Right to privacy enshrined under article 21 of the Constitution is one of the most important rights of an individual. If a person cannot enjoy his privacy then it hampers his right to dignified life.
- The High Court has held in NAZ Foundation Case that section 377 is violative of Article 14, 15, and 21 of the Constitution.
- The effect of section 377 is that it disproportionately impacts homosexuals on the basis of their sexual orientation, thus violative of article 15.
- Criminalization of section 377 has also impeded access to health service of LGBT community.
- The section violates the basic features of the Constitution i.e justice, liberty and equality
- Article 14( Equality before law) The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
- Article 15of Constitution of India deals with Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
From the Constitution
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public
Article 21 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 21 of the Constitution:
- Protection of life and personal liberty : No person shall be deprived of his life or personal liberty except according to procedure established by law.
- The Article prohibits the deprivation of the above rights except according to a procedure established by law .