SECTION 377 OF IPC

 

                                       SECTION 377 OF IPC

INTRODUCTION

Section 377 refers to 'unnatural offences' and 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 10 years, and shall also be liable to pay a fine.

The issue of Section 377 was first raised by NGO Naz Foundation, (NAZ FOUNDATION VS. GOVTERNMENT OF NCT OF DELHI,2009) which had in 2001 approached the Delhi High Court which had decriminalised sex between consenting adults of the same gender by holding the penal provision as illegal. This 2009 judgement of the high court was overturned in 2013 by the Supreme Court which had also dismissed the review plea against which the curative petitions were filed which are pending.

Section 377 of the Indian Penal Code states 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 may extend to ten years, and shall also be liable to fine.”

WHY SECTION 377 SHOULD BE REPEALED

• It violates Article 14 of the Indian Constitution which guarantees equality before law to all individuals. What use is the anti- discrimination and equality bill introduced by Dr. Shashi Tharoor in the Lok Sabha, if people are being discriminated against on the basis of their sexual preference?

• It violates Article 15 of the Indian constitution which ensures that no person shall be discriminated against on the basis of caste, gender, creed etc.

• It violates Article 21 of the Indian constitution which ensures the right of life and liberty to all the citizens of the country.

• It is a concept that is widely accepted throughout the world and it is time India moved ahead with embracing progressive laws to join other nations on the path of development and progress.

• The most common argument against homosexuality is that it is against religious scriptures and is detrimental to the culture of the Indian society. However, people fail to take into account that Hinduism (the most practiced religion in India) depicts in sculptures and scriptures people of the same sex engaging in sexual activities. If it is depicted in the sculptures of temples it means it was practiced before and was not condemned. If India fails to repeal the section then India would be moving backwards and not be progressing. Progressive laws are what the nation needs to emerge out of the cave of darkness that the nation is stuck into at the moment.

• The LGBT community (lesbian, gay, bisexual, transgender) is no more a minority community. A lot of people hailing from different backgrounds identify themselves as LGBTQ. Just because they are gay, India does not give them a right to get married or engage in sexual activities as Section 377 criminalises homosexuality. It is no more about a couple of people struggling for their rights, the broad-minded joined hands to protect the interests of the homosexuals, who are at the end of the day, citizens of the country and humans of the planet.

CASE LAWS

1) NAZ FOUNDATION VS NCT DELHI (2009) – In this case, section 377 of IPC in so far it criminalized consensual sexual acts of adults in private, was held violated of Article 21,Article14 and Article 15 of the constitution by the Delhi high court.

2) SURESH KUMAR KOUSHAL VS. NAZ FOUNDATION (2014) - the judgement which is given in 2009 by the Delhi high court was overruled by the Supreme Court in this case on 12 December 2013.

3) In the case of NAVTEJ SINGH JOHAR VS. UNION OF INDIA (2018), a five judge bench of the supreme court declared section 377 of the IPC unconstitutional, insofar as it criminalise consensual sexual acts of adults of same sex in private. However, other parts of section 377 relating to sex with minor and bestiality remain force.

 

By,

Asha Sebastian.