February 12, 2024
Statue of Lady Justice

It is a common misperception that the court has invalidated Section 377 of the IPC in its entirety with this ruling, although this is untrue. To the extent that it makes non-consensual sexual relations between people of the same sex illegal, Section 377 is still in effect.

To the degree that it penalizes consenting sexual actions between members of this group, the court has decriminalized this clause. Although this clause legally applied to heterosexuals who committed illegal sexual actions as well, it was frequently invoked to harass and persecute members of the LGBT community.

Section 377 unnatural offences

  • Anyone who willingly engages in sexual relations against the laws of nature with a man, woman, or animal faces a life sentence, a term of imprisonment of any kind that can last up to ten years, or a fine.
  • However, Article 14 of the Constitution assures everyone “equality before the law,” while Article 15 forbids discrimination “on grounds of religion, race, caste, sex, and place of birth” and Article 21 ensures “protection of life and personal liberty.” These provisions are all violated by the legislation.
  • The NGO Naaz Foundation brought up the subject of section 377 for the first time when it petitioned the Delhi High Court in 2001. The court’s decision to declare the punitive provisions unlawful decriminalized sexual relations between consenting individuals of the same gender. The Supreme Court of India annulled the 2009 high court ruling in 2018 after it had been overruled by the Apex Court in 2013.

repealing section 377 of the indian penal code: Case Analysis

Section 377: Facts of the Case

  • The names of the Parties to the case areNavtej Singh Johar and Others as Petitioners and Union of India as Respondent.
  • Insofar as it affected consenting same-sex relationships, the main question in this case concerned the constitutionality of Section 377 of the IPC, which dealt with “unnatural offences” and criminalized “carnal intercourse against the order of nature.”
  • The Supreme Court overturned the Delhi High Court’s 2009 ruling in the Suresh Kumar Koushal case that declared Section 377 to be unconstitutional.
  • In 2016, Navtej Singh Johar, the petitioner, challenged the Supreme Court’s ruling in Suresh Kumar Koushal and the validity of Section 377 in a writ petition before a three-judge bench.
  • Taking the significance of the problem into consideration, the subject was submitted to the five-judge bench.

Section 377: Issues of the Case

  • Are Articles 14, 15, 19, and 21 of the Indian Constitution violated by Section 377 of the Indian Penal Code, 1860?

Contentions by the Petitioner:

  • Although the NALSA ruling recognized transgender people as a third gender and granted them certain rights, their consenting actions are nonetheless illegal.
  • The petitioners want Section 377 IPC to be repealed because it makes homosexual couples’ consenting intercourse illegal. They believe that only crimes involving bestiality and non-consensual acts should be covered by section 377.
  • The petitioner contended that Section 377 infringes against a number of fundamental rights, including the rights to privacy, equality, dignity, and freedom of expression.
  • This section violates Article 14 of the Constitution since there is no logical classification of natural from unnatural sex or comprehensible difference between the two.

Contentions by the Respondent:

  • This court has granted the community sufficient rights in NALSA, and the further remedy petitioners are requesting is only an infringement on their right to privacy and personal freedom, which goes against the notion of public morality.
  • The criminalization of conduct under Section 377 is especially pertinent now because homosexuals who engage in these behaviours are more likely than heterosexuals to contract HIV, and as a result, their right to privacy should not be extended.
  • Declaring Section 377 unconstitutional would not only undermine the nation’s political, economic, and cultural legacy, but it would also totally demolish the family structure, the institution of marriage, and social culture.
  • Section 377 does not infringe on an individual’s constitutional rights since it is the state’s responsibility to impose reasonable limitations on specific behaviours, such as sexual activity, in order to shield its citizens from offensive and harmful content.

 section 377: Supreme Court judgment

  • On September 6, 2008, a five-judge panel consisting of CJ Dipak Misra, Justice Rohington Nariman, Justice D Y Chandrachud, Justice A M Khanvilkar, & Justice Indu Malhotra unanimously declared that Section 377 of the Indian Penal Code was unconstitutional because it prohibited voluntary sexual relations between two adult individuals who are qualified for the same sex.
  • The Supreme Court reversed the ruling in Suresh Koushal and others. v Naz Foundation and others, ruling that Section 377 is partially invalid since it breaches Articles 14, 15, 19, and 21 of the Indian Constitution. Additionally, it said that only non-consensual sexual actions against adults, sexual acts against minors, and even bestiality would be punished under Section 377.

It was one of the Supreme Court’s main landmark rulings about the LGBTQ community’s rights to equality that the Victorian-era legislation had denied them. Discrimination against someone based on their sexual orientation is extremely upsetting to their dignity and sense of worth. The community should be treated with the same respect and rights as any other people.

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