Section 377 of IPC
- Section 377 of Indian Penal Code (IPC) is a provision which criminalised homosexual intercourse (which now stands decriminalised).
- In Navtej Singh Johar v/s Union of India (2018) case, the five judges Constitutional Bench, headed by Chief Justice declared the parts of Section 377 of the IPC unconstitutional thus decriminalizing homosexuality.
- SC held that Section 377 violates Articles 14, 15 and 21 insofar as it penalises any consensual sexual relationship between two adults in private, be it homosexual, heterosexual, lesbian or transgender persons.
- Provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality.
Titled as 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 ten years, and shall also be liable to fine.”Theoretically, sexual acts such as fellatio and anal penetration may be punishable under this law.
History of cases against Section 377
- Naz Foundation vs Govt. of NCT of Delhi (2009): Delhi High Court held Sec 377 of IPC unconstitutional and violative of fundamental right of life and liberty (Art 21) and the right to equality (Art 14).
- Suresh Kumar Koushal vs Naz Foundation case (2013): Supreme Court over turned the Delhi HC judgement in Naz Foundation Case (2009), holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary. Further it observed that LGBTQI community forms only a minuscule fraction of the population.
- Navtej Singh Johar vs Union of India (2018): SC held parts of Section 377 as unconstitutional and violative of Articles 14, 15 and 21, thus decriminalizing homosexuality.
Two landmark judgments on sexual orientation and privacy
- National Legal Services Authority (NALSA) case (2014): In this case concerning the rights of transgender people, the court ruled that there could be no discrimination on the basis of sexual orientation and gender identity.
- Justice K.S. Puttaswamy case (2017): A nine-judge Bench ruled that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.
- A person’s sexual orientation and autonomy to choose his/her sexual partner is an important pillar and an in segregable facet of individual liberty. It is an expression of identity protected in various ways by Article 14, 15 and 21. Discrimination on the basis of sexual orientation is violation of freedom of choice and expression (Article 19).
- Expression of intimacy is at the heart of right to privacy. Right to sexual orientation is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. The state has no business to intrude into these personal matters. This also includes right of persons of the community to navigate public places on their own terms, free from state interference.
- Observing it as “capricious and irrational”, the court said that
- Section 377 fails to make a distinction between consensual and non-consensual sexual acts between competent adults making it manifestly arbitrary. This is violative of the right to equality that includes the right against arbitrariness.
- Moreover, it does not take into account that consensual sexual acts between adults in private space are neither harmful nor contagious to society.
- Court observed that Section 377 provides for rule by the law instead of the rule of law. The rule of law requires a just law which facilitates equality, liberty and dignity in all its facets. Rule by the law provides legitimacy to arbitrary state behaviour. Section 377 “infringed” on the fundamental right to non-discrimination, to live a life of dignity, and privacy guaranteed in the Constitution.
- Constitutional morality seeks to make a society pluralistic and inclusive. Any attempt to impose a homogeneous, uniform, consistent and a standardised philosophy would violate constitutional morality.
- Rejecting the logic in Suresh Koushal case (2013) that the LGBTQI community forms only a tiny part of the population, the SC said that Constitution is not for just the majority, the fundamental rights are guaranteed to “any person” and “any citizen”, and the sustenance of these rights does not require majoritarian sanction.
- Homosexuality is neither mental illness nor moral depravity. The SC quoted the Indian Psychiatric Society’s view that “homosexuality is not a psychiatric disorder”, and that same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality.
- The SC also apologised to the India’s LGBTQ people (lesbian, gay, bisexual, transgender, queer) and their families, for the delay in providing redressal for the ignominy and ostracism they have suffered.
Significance of the judgement
- Court pronounced that LGBTQ possess full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws. It will help in enforcing principles of social justice.
- The verdict enlarges the scope of personal freedom by giving preference to constitutional morality over social morality.
- It signifies that constitution is dynamic, vibrant, pragmatic and responsive to its citizens.
- It would help efforts at HIV/AIDs prevention which was hindered due to stigma and fear of prosecution among homosexuals and transgender persons.
Concerns not addressed
- Since the ruling would not be retrospective, so people convicted under Section 377 are left without any effective remedy. According to data from the National Crime Records Bureau (NCRB) between 2014 and 2016, there were 4,690 cases of persons being booked under Section 377.
- Decriminalising gay sex is only the first step towards creating a more equal society. A 2016 survey by Mission for Indian Gay and Lesbian Empowerment (MINGLE) revealed one in five LGBT employees were discriminated against at the workplace.
- Court judgments or laws cannot remove social prejudices on their own. India’s social and political groups will have to show the courage and will power to realise the judgement on ground.
- Supreme Court judgment has merely decriminalised homosexuality but it has not altered the civil law/Personal laws on it. The validation of homosexual marriages, inheritance and adoption require legislation on which Parliament has to work.