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A Critical Analysis on Dicriminalization of Section 377 of Indian Penal Code, 1860

India is a democratic country and the Constitution of India provides certain rights to its citizens. Such as Article 14, 15, 19(1)(a) and 21 which provides Right to Equality, Non-Discrimination on the grounds of religion, race, caste, sex or place of birth ,Freedom of speech and expression and Protection of life and personal liberty. But this rights were violated by Section 377 of Indian Penal Code, 1860 which criminalizes consensual homosexuality although this act was decriminalized by The Supreme Court of India in case Navtej Singh Johar v. Union of India[1] in 2018.

Section 377, Indian Penal Code, 1860

Unnatural offences -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 ten years, and shall also be liable to fine.

Explanation.�Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[2]

In simple words, Section 377 of the Indian Penal Code ( IPC ) is an act that criminalizes consensual homosexuality it came into force in 1862 and is referred as �Unnatural Offences�. It says that 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 can be 10 years, and shall also be entitled for fine.

However, in a historic verdict, the Supreme Court of India on September 6, 2018, decriminalized the Section 377 of the IPC and allowed gay sex among consenting adults in private . The Supreme Court ruled that consensual adult gay sex isn't against the law saying sexual orientation is natural and other people have no control over it.

Procedure of Decriminalisation of Section 377 of IPC

Section 377 of Indian Penal Code is one of the most important legal issues in India. Mainly there are five landmark cases for the decriminalization of Section 377.
  1. �2007, Naz Foundation v. Govt of NCT Delhi[3]
    Naz Foundation is a NGOs who works in the field of AIDS and any other health issues. In this case there was one question which arised was that, Is section 377 should be removed or not; regarding this the court dealt it with two ways- the first one is (Right to life, Article 21 ) that without dignity or privacy no one would be able to enjoy a life and the second is (Right to Equality, Article14&15) in this Section 377 was in violation of Article 14 because it is an unreasonable discrimination.

    It discriminated Homosexual as a class and it discriminate Consensual Sex. While in Section 15 , no person should be discriminated on the basis of sex . Only biological sex is not included, sexual orientation is also included.

    This argument has taken place in many cases and at last it gives more weightage to sexual orientation as compared to biological sex.
    The Delhi High Court held that, the part of homosexual in sec 377 should be declared as unconstitutional.
  2. 2013, Suresh Kumar Koushal v. Naz Foundation[4]
    The two arguments arose in the Suresh Kumar Koushal case. The first is; Homosexuality is a criminal offence and it can be decriminalized by Parliament only, the Court should not interfere. And the Second is Right to privacy will not cover Homosexual Act.

    In 2009 after the Naz Foundation case, the person who discloses their identity in a society and freely expresses their sexual orientations. Following the judgment of Suresh Kumar Koushal the Society targeted them as a Criminal or a culprit.
  3. 2014, NLSA v. Union of India & Ors.[5]
    All the existing laws of India are binding on all genders, they only focus on male or women. Transgender Community rights are not protected from any provision. That was the one of the reason, transgender community are discriminated in a society.

    For dealing with the loopholes of this problem, the Supreme Court reorganized multifaceted rights which includes:
    • Article 14[6]- Right enjoyed by any person, it included men, women and transgender.
    • Article 15[7]- No person should be discriminated against on the Ground of Sexual orientation.
    • Article 19[8]- Privacy, gender, identity, integrity all are protected under article 19 (1) (a) and can be included under article 377.
    • Article 21[9]- Right to live with dignity so they have a right to choose their gender identity.
      After this case the transgender get a right of self identify of their gender, equal treatment to �all people� and legal recognition of gender identity (men, women, transgender).
  4. 2017. Justice K.S. Puttaswamy v. Union of India[10]
    In this case, the Supreme Court of India affirms that Right to Privacy is a Fundamental Right. For this case 9 judges of the bench was constituted, case was authored by Justice Chandrachud. He said that the Supreme Court has a responsibility to rectify the mistake of Suresh Kumar Koushal Case. He also speaks that sexual orientation is the essential attribute of privacy, from this attribute article 14, 15 and 21 are protected by Part 3 of the Indian Constitution. In this case, the Minuscule Minority idea was rejected.
  5. 2018, Navtej Singh Johar v. Union of India[11]
    This was the final case regarding Section 377. In this case a petition was filed by Navtej Singh Johar challenging Sec 377 on the basis that it violated the Constitutional Rights to right to privacy, freedom of Expression , equality, human dignity and protection from Discrimination.

    The Supreme Court held that discrimination on the premise of sexual orientation was in violation of the right to equality that criminalizing consensual sex between adults in private and was also in violation of the right to privacy, that sexual orientation forms an inherent part of self identity and denying the identity would be in violation of the right to life, also fundamental rights can�t be denied on the basis that they only affect a minuscule section of the population.

On the basis of this article, it can be concluded that section 377 of IPC has been finally decriminalized after the judgment of Navtej Singh Johar in 2018. Following this judgment section 377 became unconstitutional and LGBTQ community can now exercise the rights which falls under article 14, 15, 19(1)(a) and 21 of the Constitution of India.

Even after section 377 of IPC became unconstitutional the Indian Society is still not willing to accept LGBTQ community. Due to which these communities are afraid to disclose their sexual identity/orientation. As they were frightened that the society may not accept them and they will not be able to enjoy their life normally.

If we see that, LGBTQ community is considered as normal in other countries and they are not treated differently but in our India these community is not been accepted because of which they are facing a lot of problems.

It should be necessary that the people of Indian society should understand it and accept this community because sexual orientation is natural and a person has no control over it.

  1. W.P. (Crl.) No. 76 of 2016; D No. 14961/2016
  2. Section 377, Indian Penal Code, 1860
  3. 160 Delhi Law Times 277
  4. Civil Appeal No. 10972 OF 2013
  5. AIR 2014 SC 1863
  6. Article 14, The Constitution of India, 1950
  7. Article 15, The Constitution of India, 1950
  8. Article 19, The Constitution of India, 1950
  9. Article 21, The Constitution of India, 1950
  10. WRIT PETITION (CIVIL) NO 494 OF 2012
  11. Supra Note 1
Written By:
  1. �Amisha Matkar &
  2. Shruti Gupta

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