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Section 377

Section 377 of the Indian Penal Code that criminalized homosexual acts was declared unconstitutional by the Supreme Court in 2018. The landmark judgment brought relief to the LGBTQIA+ community in India and recognized their fundamental rights to dignity, freedom and equality. It was a culmination of years of legal challenges and advocacy. The judgment established that an individual's sexual orientation and privacy are constitutionally protected rights. It also recognized that social attitudes should not infringe upon basic human rights.

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Pritam Saha
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50 views

Section 377

Section 377 of the Indian Penal Code that criminalized homosexual acts was declared unconstitutional by the Supreme Court in 2018. The landmark judgment brought relief to the LGBTQIA+ community in India and recognized their fundamental rights to dignity, freedom and equality. It was a culmination of years of legal challenges and advocacy. The judgment established that an individual's sexual orientation and privacy are constitutionally protected rights. It also recognized that social attitudes should not infringe upon basic human rights.

Uploaded by

Pritam Saha
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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Section 377

SC Judgement Explained...
Text of Sec 377...
• 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.
LGBTQIA+...
Challenge 1: NAZ Foundation
• 2009: A two-judge bench of the Delhi High
Court struck down Section 377.
ECI comes into picture...
• Election Commission of India entered into
picture by giving transgenders the choice of
registering as “Others,” thereby dropping the
requirement that they declare themselves
male or female.
Challenge 2:
• A two-judge bench of the Supreme Court
overturns the Delhi High Court verdict –
criminalising homosexuality again.
National Legal Services Authority
Judgement (2014)
• The Supreme Court of India recognises
transgender as a third gender.
• ‘Recognition of transgender as a third gender
is not a social or a medical issue but a human
rights issue’.
Significance of the 2014 Verdict:
• The court challenged the dominant view of
gender identity.
• In a society that has focussed on a binary this
was revolutionary.
• The SC directed the State for an ‘affirmative
action policy’.
• The Court recognised that ‘individual
experience’ of gender is one of the most
fundamental aspects of ‘self-determination,
dignity and freedom’.
Challenge 4: Shashi Tharoor’s PMB
• Introduces a Private Members Bill.
• Not allowed to be tabled.
Final Hope...
• Feb,2016: The SC refers the matter to a
Constitution Bench.
You talk of culture??? Let me take you there...
• ‘Against the order of nature’.
• Unnatural???
Disorder?
• American Psychiatry Association (1973).
• World Health Organisation (1992).
• 2017 Mental Healthcare Act, expressly
prohibits discrimination on grounds of sexual
orientation (in the domain of mental health).
Legal Experts’ Views...
• Kapil Sibal – ‘A person’s sexuality is his or her
most precious, most private of rights’.
• Against Article 14, 15 & 21.
SC’s Views while upholding Section 377
• Onus is on Parliament, not Courts.
2.
• LGBT Community is a miniscule minority.
3.
• Misuse? That’s the problem of Parliament, not
Courts!!!
Christine Goodwin v/s the United Kingdom

• In 2002, the European Court of Human Rights


held in this landmark case that disallowing
transsexuals to change their birth certificates
or from marrying in their self-assigned gender
roles was a breach of the European
Convention on Human Rights.
• The State has no, and should not be given any,
right to enter into the private bedroom of
two consenting adults.
• Criminalising consensual sexual activity of
adults should not be the focus area of a Govt.
Justice Arrives...
Navtej Johar v Union of India.
• A strong South African flavour to the Chief
Justice's S. 377 judgment, drawing from the
SA Constitutional Court's vision of
transformative constitutionalism.
• The principle of non-retrogression of rights
accepted by the Chief Justice - society cannot
regress after reaching a certain standard of
rights.
• Nariman J. "The fundamental rights chapter is
like the north star in the universe of
constitutionalism in India."
• Nariman J says that there is no presumption
of constitutionality for laws that were passed
by a colonial, foreign regime.
• "There is no document of civilization which is not
at the same time a document of barbarism." -
Walter Benjamin, On the Concept of History.
• "Civilization has been brutal." -Chandrachud J.,
Navtej Johar v Union of India (referring to 377
and the Brits).
• Indu Malhotra J – apology.
• Article 14 has a substantive content on which,
together with liberty and dignity, the edifice
of the Constitution is built.
• Simply put, in that avatar, it reflects the quest
for ensuring fair treatment of the individual in
every aspect of human endeavor and in every
facet of human existence.
• The stirring message from the Supreme
Court’s landmark judgment decriminalising
gay sex is that social morality cannot trump
constitutional morality.
• It is a reaffirmation of the right to love.
Status of 377
Way Forward
Role of Legislature.

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