By- Adv. Manisha Singh
WHAT IS SECTION 377?
Section 377 of the Indian Penal code (IPC) was introduced in 1861 during the British rule of India. Section 377 is an act that ‘criminalises homosexuality’ or ‘unnatural offence’. This section says that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal that shall be punishable which may be extended for 10 years and with life imprisonment and shall also liable to pay fine.
Section 377 also included consensual sexual acts of an adult whether as oral and anal sex in private place which was treated as unnatural and punishable.
WHAT IS LGBT?
LGBT stands for Lesbian, Gay, Bisexual and Transgender which describe distinct groups within the gay culture. It may be used to refer to anyone who is non-heterosexual instead of exclusively to people who are lesbian, gay, bisexual or transgender.
WHAT ARE THE ISSUES?
According to this section ‘voluntary’ acts as punishable under section 377 of the Indian penal code. However, this section does not make any difference between:
Male who commit any rape on another male
Male adult seducers
Two males who had consensual sex
This section lacks precise definition regarding the term ‘carnal intercourse against the order of nature’ which is not defined in IPC.
It has been subjected to various judicial interpretations.
The declaration of all homosexual acts criminal, whether consensual or nonconsensual, is nothing but is considering all homosexuals as a sexual pervert. Therefore it's demeaning the dignity of the LGBT community.
Violation of the Fundamental rights –Article14, 15 and 21 of the Constitution of India including Right to privacy.
A LANDMARK JUDGEMENT
A landmark judgement by Hon’ble Supreme Court of India has overturned a colonial-era law that decriminalized the section 377 of the IPC and allowed consensual gay sex, in a long- fought for victory for the LGBTQ community.
It was a very pride moment for humanity as India’s highest court had pronounced a unanimous verdict on pleas challenging the validity of section 377 of the IPC.
The five-judge bench of the Supreme court reached a unanimous decision and signalled the approval of homosexuality and gay sex in India. A bench headed by Chief justice Dipak Misra and justices –DY Chandrachud, RF Nariman, Indu Malhotra and AM Khanwilkar.
“History owes an apology to the LGBT community and their families for the delay in ensuring their rights,” said Justice Indu Malhotra in the bench.
Now, The LGBT community has the same Fundamental rights as an ordinary citizen. After this landmark judgement, it recognizes the status of transgender as the third gender and this category has to be treated under minorities and should hold the reservation quota.
CONSTITUTIONAL VALIDITY
In 2001, this colonial-era law was first time challenged by NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan and filed a writ petition in the court with a demand to decriminalize consensual sex and the validity of section 377. However, both the petitions were dismissed in the court.
In July 2009, the Delhi high court decriminalized sex between consenting adults of the same gender, and in fact a violation of Article 14,15, and 21 of the constitution of India.
Article 14 ensures the equality before the law, Article 15 prohibits discrimination on grounds of sex, religion, race, caste, or place of birth, and Article 21 guarantees the personal liberty and the protection of life.
On September 6, 2018, Finally, the apex court bench had announced unanimous verdict that consensual adult gay sex is not crime and article 14,15 and 21 of Indian Constitution contradict the present view of section 377 of IPC.
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