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SECTION 377: A SOCIO LEGAL CHANGE

Author: Ivana Parveen, V year of BBA.LLB( Hons) from ICFAI University, Dehradun


Section 377 of the Indian Penal Code introduced in 1864 during the British rule of India. Modelled on the Buggery Act of 1533, it makes sexual activities that are against the order of nature illegal. The essential ingredients that make an offence fall under this section are as follows:

· There must be a carnal intercourse

· That must be against the order of nature with any man, woman or animal.

And the maximum punishment for that offence is imprisonment for life or 10 years. It is a non-bailable offence. It is also a cognizable and non-compoundable offence.


The section intended to punish certain offences like sodomy, buggery homosexual intercourse and bestiality. But currently, the section got partially decriminalized. The homosexual intercourse part got decriminalized. LGBT and GLBT community got social and legal reorganization. LGBT and GLBT are initialisms that stand for lesbian, gay, bisexual and transgender. They have a six colour rainbow flag which was designed by Gilbert Baker, a San Francisco artist. There is a meaning behind every colour of their flag. Red stands for life, orange is for healing, yellow is for sunlight, green is for nature, blue is for serenity and violet is for the spirit. There are also additional colours on the other version of the LGBT flag. Pink is for sex and indigo is for harmony.


The journey of the biggest socio-legal change in India is as followed:


Naz Foundation v Government of NCT Delhi, 2009

NAZ foundation is an NGO which deals with HIV AIDS and other health issues. The issue of Section 377 was first raised by NAZ Foundation, which had in 2001 approached the Delhi High Court. The High Court deals this issue with two angels. The first one was about Article 21 and the verdict that without dignity and privacy a person can’t enjoy the right to life. And secondly discussed the concept of the right to equality[1] and verdict that section 377 of the Indian Penal Code is against Article 14 on the ground of unreasonable discrimination. Section 377 discriminates against homosexuals as a class and criminalises their consensual sexual relationship. Another ground Delhi high Court discussed that as per article 15 of our Constitution discrimination based on sex is prohibited. And sex includes biological as well as oriental sex.


Finally, Delhi High Court held that the part of section 377 which criminalized the consensual sexual relationship of homosexuality shall be decriminalized. But also the court vested the amendment part upon the parliament.

Suresh Kumar Koushal v NAZ Foundation, 2013

In this case, there were mainly two arguments:

First, Homosexuality is a criminal offence and the only parliament can decriminalize this by making the amendment and the court can’t interfere in this.


Second, the Right to privacy shall extent to a certain level; it shall not include any act which amounts to an offence. And finally held that homosexual intercourse is an offence, the right to privacy will not cover homosexual acts.


Many international organizations criticized India for this judgment and consider this as a significant step backwards. After the 2009 judgment by Delhi Court the people who revealed their identity and freely expressed their sexual orientation after this judgment was targeted in the society and treated as a criminal.


NALSA V. Union of India, 2014

In this case, the loopholes of our Indian law were identified. All existing laws of our country are of binary gender (focused on male or female). The rights of the transgender community are not protected by any provisions and the community is discriminated against. To overcome this loophole Supreme Court of India recognized transgender multi facial rights:

· Under article 14 the rights of every gender are protected (men, women, transgender)


· Under article 14 and 15 gender-based discrimination is prohibited and if there is discrimination on the ground of gender orientation it will be against the article 14 and 15.


· Privacy, gender identity, integrity is protected under article 19(1)(a).


· The right to live with dignity includes the right to choose gender identity as per article 21. And we need to have better provisions that focus on the present scenario of society.


For this case, the transgender community got the legal right to equal gender identity.


Justice K. S. Puttaswamy v. Union of India

In this case, the Supreme Court affirms that the right to privacy is our fundamental right. And there was a 9 judges bench to decide this case and the judgment was author by Justice Chandrachud and said that the Supreme Court has the responsibility to rectify the mistake done on the Suresh Koushal case[2]. Sexual orientation is an essential attribute of privacy and this attribute is protected by many rights given in part III of the Indian constitution.


Navtej Singh Johar V Union of India, 2018

This is the most celebrated judgment of the year 2018. In this case, the consensual sexual relationship among adults in private including homosexuals is decriminalized. In this case, there were 5 judges bench consisting of the Chief justice of India Justice Dipak Mishra, Justice Indu Malhotra, Justice Rohinton Nariman, Justice A M Khanwilkar, and Justice D Y Chandrachud.


Legal Arguments

· About article 14 Supreme Court held that criminalization of two adults consensual sexual relationship only on the ground of homosexuality is neither an intelligible differentia nor rational nexus.


· About article 15 the Supreme Court held that at the time of the Naz Foundation case the approach of the Delhi high court about sex was biological and sexual orientation is the correct approach.


Finally, the court held that the right to life includes the right to privacy, autonomy and dignity but the right can be restricted by reasonable restriction. But about section 377 no one shall be deprived of the enjoyment of these rights.

Sixty-eight years after the founding fathers of the Republic of India encoded the right to freedom of life and liberty the LGBT community gets their rights. India now joins a proud league of states that recognizes true freedom of individuality and sexual expression. This ruling of the Supreme Court won't only impact India, but also will undoubtedly have immense transnational value. The effect of this judgment is particularly likely to be felt in other common law countries, and it'll, hopefully, provide an impetus to those countries that also have equivalent provisions in their statute books, to critically consider the lawfulness and legality of provisions that similarly criminalize consensual sexual relations.


BIBLIOGRAPHY

· (n.d.). Retrieved 11 14, 2019, from timesofindia.indiatimes.com: https://timesofindia.indiatimes.com/india/what-is-section-377/articleshow/66067994.cms

· NARAYAN, A. (n.d.). Retrieved NOVEMBER 14, 2019, from thehindu.com: https://www.thehindu.com/society/section-377-judgement-one-year-later/article29342570.ece

· UTTARAN, D. (n.d.). Retrieved NOVEMBER 14, 2019, from https://www.business-standard.com/article/current-affairs/article-377-of-ipc-decriminalising-homosexuality-a-wrong-is-righted-118122800018_1.html


[1] Article 14, The Constitution of India

[2] Suresh Kumar Koushal v NAZ Foundation, 2013