Author- Seep Gupta | College Name- Institute of Law, Jiwaji University
This article is all about the various provisions which have been mentioned under ‘Section 377 of IPC’. This section criminalizes all the sexual activities against the order of nature. All the sexual activities other than penile-vaginal intercourses come under the umbrella term of Section 377 of the Indian Penal Code. This section was introduced in the year of 1861 during the British rule and it was modeled on the Buggery Act of 1533.
This article will throw light on the history and roots as how this section has been inserted in the Indian Penal Code and how Section 377 is unconstitutional in nature and violates core fundamental rights with reference to various landmark cases passed by the different courts.
Indian Penal Code 1860, Section 377 of IPC, Unconstitutional, Buggery Act, 1533
Section 377 of IPC which criminalizes the carnal intercourse against the order of nature violates the core fundamental rights of the Indian Constitution such as Article 19 (Right to freedom), Article 14 (Right to equality), and Article 21 which gives the freedom of right to life and personal dignity and autonomy.
This section directly violates the basic rights and freedom of the LGBTQ community which is Lesbian, Gay, Bisexual, Transgender, and Queer people. It violates their sexual freedom and it acts as a hurdle for them in realizing their sexual identity. This section also publicly humiliates gay people for engaging in private consensual sex between adults. It pertains to show the LGBTQ community as lawbreakers and as criminals.
Definition of Section 377 of IPC
This section defines what comes under the garb of unnatural offenses and punishment in indulging in these types of sexual activities.
According to this section, whoever voluntarily indulges in any sexual activities against the order of nature will be liable for punishment which may extend up to 10 years, and shall also be liable to fine. Penetration is sufficient to constitute the carnal intercourse.
Unnatural offenses which are mentioned under this section are carnal intercourse against the order of nature with any man, woman, or animal.
History of Section 377 of the Indian Penal Code
Section 377 of IPC was first drafted by Thomas Macaulay in 1838, but it was brought into light in 1860 during the First War of Independence in 1857. The law related to Section 377 of IPC was modeled on the Buggery Act 1533 which was enacted during the reign of King Henry VIII. The word, “Buggery’ is something related to unnatural sex with animals and bestiality. In that time, unnatural sex referred to something immoral against the will of God.
So basically, Section 377 of IPC is against the bestiality and in broader aspects it criminalizes homosexuality. The idea of Section 377 of IPC is based on the Offences against the Person Act 1828. This later got amended into Offences against the Person Act 1861.
The irony is that homosexuality was decriminalized in Britain by the Offences against the Person Act 1967. And, now even same-sex marriages are legal in the U.K. But, India is still religiously following the draconian Victorian law and homosexuals are still under the constant radar of police enforcement authorities and lawmakers.
Constitutionality of Section 377 of IPC
Over the years, Section 377 of IPC has fetched much hatred and it has sparked numerous controversies. This section has been challenged in both the High Courts and in Supreme Court as well. In 2001, Naz foundation which is an N.G.O. based in Delhi that destigmatizes the stigma that surrounds that AIDS patients challenged the provisions which are mentioned under Section 377 of IPC in the Delhi High Court. But, the Delhi high court dismissed the appeal of the Naz Foundation by mentioning that the Naz Foundation has no stand under it.
Later, the Naz Foundation filed an appeal in the Supreme Court challenging the decision of the Delhi High Court. This led to the landmark judgment which was given by the Chief Justice Ajit Prakash Jha and Justice Muralidhar, which decriminalizes the consensual non-penile-vaginal relations between two adults.
This judgment later became the base to amend section 377 of the Indian Penal Code 1860 in the Parliament.
In the year, 2012 a panel of two Supreme Court judges overturned the decision which was given by the Delhi High Court in 2010 decriminalizing homosexuality. According to the Supreme Court, High Courts do not have the power to amend the laws, parliament does.
Later in 2014, Shashi Tharoor brought the private member bill that decriminalizes the consensual non-penile-vaginal intercourse between two adults on the table. But unfortunately, it was rejected by both the houses of parliament with very little votes.
Recently the Supreme Court in January 2018 formed a constitutional bench for hearing the challenges and comprehensive arguments regarding Section 377 of the Indian Penal Code.
On the 6th of September 2018, the five-bench of the Supreme Court decriminalized the consensual non-vaginal sex between the two adults and it partially struck down or abrogated Section 377 of IPC. It was done on the pretext of, ‘Right to Privacy’ which was recently inserted in Article 21 of the Constitution by Puttaswamy Judgement.
This came out as a very progressive step by the Supreme Court. After the decriminalization of non-vaginal intercourse, now the LGBTQ community is legally allowed to engage in non-vaginal sex and they are no more criminals now.
The barbaric Section 377 of IPC was against many core Fundamental Rights which have been mentioned in Part III of the Indian Constitution.
However, the court has retained some of the provisions which have been mentioned under Section 377 of IPC. They are consensual non-vaginal intercourse with minor, non-consensual non- vaginal intercourse, and provisions regarding bestiality.
Landmark cases related to Section 377 of IPC
Naz Foundation Govt. v NCT of Delhi
In July 2001, police arrested nine men from some N.G.O. and pressed charges against them that they were running a sex racket there. It was the case of Lucknow. They were arrested under Section 377 of the Indian Penal Code, 1860.
After this Lucknow incident, an N.G.O. Naz foundation went ahead and filed a write petition in the Delhi High Court in 2001 challenging the constitutional validity of Section 377 of IPC. They also argued that this section violates the basic rights of a specific community.
Naz Foundation is an N.G.O. that works towards the destigmatization of AIDS patients and to normalize the discussion regarding AIDS and sexualities. According to them, the prosecution of the LGBTQ community will further stigmatize the issue and this will prohibit the general public to have an open discussion on various sexualities.
In 2009, the Delhi High Court gave the verdict that the court cannot put unreasonable restrictions over two adults engaging in consensual sex in private. It is the violation of their basic fundamental rights.
Suresh Kumar Koushal Vs. Naz Foundation
In this case, the appellant Suresh Kumar Koushal who was an astrologer from Preet Vihar Delhi vehemently opposed the idea of decriminalizing the same-sex marriages and Section 377 of IPC. Various orthodox and conservative communities and religious sects opposed the very idea of same-sex relationships and marriages. Their further appeal in the court made the court ponder over their previous verdict which was in the favour of the LGBTQ community.
After continuous protests and opposition from these sects and communities, the Supreme Court overturned the decision of the Delhi High Court and decriminalized same-sex relations and homosexuality.
This came as a shock for the LGBTQ community because they did not expect it. And, thinking about the very fact that they had to live a life with shackles and humiliation disappointed them to no extent.
According to the Supreme Court, the LGBTQ community represents only the minuscule groups and their rights need not be recognized separately.
This infamous notorious judgment created a huge public outcry from every corner of the country. It completely wiped off all the human rights and fundamental rights of the homosexuals and the LGBTQ community. This resulted in the new protest in the favour of the LGBTQ community from all over the country.
National Legal Services Authority Vs. Union of India
This case emerged as a boon for the transgender community as it gave new rights for the transgender by recognizing them as the third gender. Transgender holds a special place in Indian Culture. They are referred to as Hijras in the Indian subcontinent and in neighboring countries. They play an important role in significant Indian culture, rituals, and customs since the bygone.
Trans people have had negligible rights and they have suffered so much because of ingrained notions that people have in their minds and because of the taboos surrounding them. Trans people have always been at the receiving end.
This case emerged as a boon for the Transgender community. This judgment also recognized the transgender community as a socially backward class because for years the transgender community has suffered a lot. The court also decided to provide reservations in various educational institutes and government jobs for the upliftment and the overall development of the Transgender community.
This historical case became a base for Transgender Persons Bill, 2018.
K.S. Puttaswamy Vs. Union of India
This case is also known as, Aadhar Card Case. Supreme Court in this case widened the ambit of (Article 21) of the Indian Constitution. Supreme Court added the right to privacy under the context of Article 21 of the Indian Constitution. Article 21 defines the right to life and personal dignity. Supreme Court tried to rectify its mistake in the Suresh Koushal Das Case. According to it, Section 377 of IPC violates the freedom and privacy of the LGBTQ community.
This case added a whole new dimension in the fight of the LGBTQ community against Section 377 of IPC.
Justice Chandrachud in this case said that sexuality comes under the ambit of the Right to Privacy. LGBTQ community cannot be deprived of their rights just because they belong to a very minuscule group. Minorities need to be protected at every cost and it is the need of an hour.
Section 377 of IPC violates the basic rights of the LGBTQ community and homosexuals. They discriminate against them based on their sexuality and gender identity which is a clear violation of Article 15 of the Indian Constitution. According to Article 15 of the Indian Constitution, no one can discriminate against any person based on race, caste, sex, religion, place of birth. It is also recognized by the court that the word ‘sex’ given in Article 15 includes sexual orientation too.
Navtej Singh Johar V. Union of India
After the huge outcry by the LGBTQ movement, protests had been organized in every corner of India. After, the 2013 decision of the Supreme Court of recriminalizing homosexuality again, some high-profile people came forward one of them was Navtej Singh Johar who filed the PIL (Public Interest Litigation) in the Supreme Court challenging the validity of Section 377 of the Indian Penal Code, 1860.
The court finally gave their verdict on 6th September 2018. They said that Section 377 of IPC is unconstitutional in nature as it violates the core fundamental rights of the minorities and it needs to be struck down. Section 377 of IPC in itself is very vague in nature as it cannot tell the basic difference between the natural and unnatural part so it was liable to be struck down.
This partial abrogation of Section 370 recognized the gender identity and sexuality of homosexuals. This also paved the way for other basic rights of the LGBTQ community such as adoption and marriage rights. This struck down validates the long course struggle of the LGBTQ community.
Future Developments of Section 377 of IPC
After the decriminalization of homosexuality, many things have changed. Now, more and more people are openly accepting homosexuals and stigma is reducing but still, we need many reforms and new laws for the LGBTQ community.
There are still many conservative people that do not approve of homosexuality. They still despise the very idea of same-sex relationships and marriages. Many people have come out of their homosexual closet in the open and in front of their colleagues at workplaces. Still, when it comes to embracing them there is not much change. In fact, even most of the doctors still view homosexuality as a disease.
There are many rights that are only available for heterosexual people such as marriage, adoption, inheritance, and parental rights. In India, the LGBTQ community still cannot marry each other. The universe still belongs to heterosexual people with a plethora of benefits and rights. But, they are not many rights that are in favor of homosexual people.
Recently, one of the judges of the Supreme Court said that same-sex marriage is not part of Indian culture and it is against our culture and values. A large part of society is still homophobic. It’s not like that legal rights will give them social acceptance too.
Legal rights cannot assure social acceptance. It’s up to the mentality of the society that needs to be changed. Society needs to be flexible rather than being adamant and rigid. Changes are needed to bring the social revolution so that more and more people will get familiar with the rights of the LGBTQ community and will eventually embrace them.
There is a need for an hour to amend the marriage laws or separate laws should be formed so that same-sex marriages and relationships can get legal acceptance. People need to let their guards down and they need to abandon their fears because at the end of the day homosexuals are also humans and everyone has the right to be recognized by the manner they want to be. Everyone has the right to flaunt their gender identities without having the fear of prosecution.
In the future, we can only hope to see the new emerging trends and new laws.
We can only conclude at the end of the day that Section 377 of IPC was unconstitutional, barbaric, draconian, and arbitrary in nature. It was needed to be struck down. It was hoarding up the overall development of the country.
Apart from the legal changes, we need a variety of social changes too. Society needs to shed their fears and revolution is needed so that more and more people will accept the LGBTQ community and will not see them with disgust. It is crucial that minorities need specific laws and special attention from the judicial and from the policymakers because they are the worst sufferers from the hands of the majoritarian regime.
Anything unconstitutional in nature needs to be struck down from the constitutional law. In the future, we can only hope to see new laws and drastic changes that will be in the favour of the LGBTQ community.
- Aparna Narrain,‘Section 377 judgment on same-sex relations: One year later, has anything changed?’ The Hindu (Delhi, 05 September 2019) https://www.thehindu.com/society/section-377-judgement-one-year-later/article29342570.ece accessed 20 September 2020
- Yatin Gaur, ‘Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal’ https://www.google.co.in/amp/s/blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/amp/ accessed 20 September 2020
- ‘Section 377 Judgement’ https://www.drishtiias.com/to-the-points/paper2/to-the-point-paper-2-section-377-judgementaccessed 20 September 2020
- ‘Constitutionality of Section 377 of IPC’ https://www.scobserver.in/court-case/section-377-case accessed 20 September 2020
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