Section
377 of IPC
Chapter
XVI, Section 377 of the Indian Penal Code (IPC) 1860 was introduced during the
British rule of India. It criminalises sexual activities "against the
order of nature." 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 term
which may extend to ten years, and shall also be liable to fine.
The
ambit of Section 377 extends to any sexual union involving penile insertion.
Thus, even consensual heterosexual acts such as fellatio and anal penetration
may be punishable under this law.
The Beginning
·
The movement to
repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991.
Their historic publication Less than Gay: A Citizen's Report, spelled out the
problems with 377 and asked for its repeal.
·
As the case
prolonged over the years, it was revived in the next decade, led by the Naz
Foundation (India) Trust. The activist group filed a public interest litigation
(PIL) in the Delhi High Court in 2001 seeking legalisation of homosexual
intercourse between consenting adults.
Delhi High Court
historical judgment
·
In a historic
judgement delivered on 2 July 2009, Delhi High Court overturned the
150-year-old section there by legalising consensual homosexual activities
between adults. While striking down the section the Court stated that the
essence of the section goes against the fundamental rights of citizens in the
Constitution.
·
In a 105-page
judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar
said that if not amended, section 377 of the IPC would violate Article 14, 15
and 21 of the Indian Constitution. However, the court clarified that “the
provisions of Section 377 will continue to govern non-consensual penile
non-vaginal sex and penile non-vaginal sex involving minors.”
·
Further it was
argued that the right to live with dignity and the right of privacy both are
recognised as dimensions of Article 21. Section 377 IPC denies a person’s
dignity and criminalises his or her core identity solely on account of his or
her sexuality and thus violates Article 21 of the Constitution.
Supreme Court’s
December 2013 Judgment
·
However, on 11
December 2013 this judgment of the Delhi High Court was struck down by the
Supreme Court in Suresh Kumar Koushal v. Naz Foundation case and, consequently,
Section 377 was reinstated with full force.
·
The Supreme Court
was further very specific that this was not the end of the debate and it asked
parliament to take a decision on whether Section 377 should be repealed or not.
·
In response, the
Union Government filed a review petition on 21 December 2013 stating that the
judgement was violating rights under article 14, 15 and 21 of the Constitution.
·
Besides, Naz
Foundation also filed a review petition against the Supreme Court order on
Section 377.
·
While responding
to the litigation, the Supreme Court on 28 January 2014 dismissed the review
petition. The petitions were dismissed on the ground that Section 377 is
Constitutional and applies to sexual acts irrespective of age or consent of the
parties.
New impetus
·
On 15 April 2015,
the Supreme Court in National Legal Services Authority v. Union of India case
recognized the right to identity of transgender persons. The Supreme Court also
specifically noted that Sec 377 is used to harass and physically abuse
transgender persons.
·
Following the
NALSA verdict, Tiruchi Siva, a member of parliament introduced a private
member’s Bill titled Rights of Transgender Persons Bill, 2014 in the
Parliament. The bill was passed by the Rajya Sabha and is pending before the
Lok Sabha.
·
Both the NALSA
decision as well as the Rights of Transgender Persons Bill, 2014 have shown the
determination of both the Supreme Court and parliament to protect the rights of
all citizens including transgender persons. Another state institution, the Law
Commission of India as early as 2000, has in its 172 Report recommended that
Section 377 be deleted.
5-member
Constitution Bench to review Section 377
·
On 2 February
2016, the final hearing of the curative petition was submitted by the Naz
Foundation and others came for hearing in the Supreme Court.
·
The three member
bench headed by the Chief Justice of India TS Thakur said that all the 8 curative
petitions submitted will be reviewed afresh by a 5-member constitutional bench
for a possible back-to-roots, in-depth hearing.
·
The open court
hearing was the result of two years of waiting since the batch of eight
curative petitions was filed in March 2014 by parents, civil society,
scientific and LGBT rights organisations against the 28 January 2014 apex court
verdict.
Against the
repealing of Section 377
·
Apostolic
Churches Alliance opposing the petitioners argued that homosexuality was an
abomination in the Bible.
·
It is contended
that decriminalising homosexuality would make the Prevention of Immoral
Trafficking Act, 1956 redundant.
·
If the section is
allowed then sexual transmitted diseases like AIDS would further spread and
harm the people.
·
It would lead to
a big health hazard and degrade moral values of society.
Section
377 continues to have a profound impact on the dignity and self esteem of LGBT
persons and poses a continuing threat to the peaceful enjoyment of family life
of LGBT persons across the country. Therefore all the stakeholders should work
in coordination for the dignity and rights of LGBT. Furthermore, Section 375 of
the IPC should be amended so that protection from rape is extended to all
persons regardless of gender or sexuality in line with the Justice Verma
Committee recommendations.
How SC gave judgments on Homosexuality and
Transgenders?
|
Naz Foundation Case
|
NALSA Case
|
|
Sexual Rights of
LGBT Community
|
Constitutional
& Legal Rights of Transgenders Community
|
|
Main Arguments:
Sec 377 of IPC is unconstitutional
|
Main Argument:
Transgenders are not given Fundamental Rights under Articles 14, 15, 166, 19
and 21
|
|
Case defeated
|
Case won
|
|
Homosexuality is
still a crime under Section 377 (Dec 2013 SC Judgment)
|
Transgenders have
all Fundamental Rights and Legal Rights (April 2014 SC Judgment)
|
|
Supreme Court (on
Feb 2016) said that, all the curative petitions submitted will be reviewed
afresh by a 5-member constitutional bench for a possible back-to-roots,
in-depth hearing
|
|
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