Constitutionality of Section 377

Introduction

“Social morality cannot violate the rights of even one single individual” -A.M KHANWIKAR

The concept of human rights rests on the fundamental idea that all human beings are equal. In the present era where revolutions for equality are ongoing all over the world, if anyone is penalised for one’s sexual choice then it is an injustice to him or her.

Before India was also one of those counted countries where homosexuality was criminalised and people of the LGBT community were being tortured and being seen with bad eyes. All thanks to the landmark judgement delivered by the constitutional bench consisting of judges like D.Y Chandrachud, Dipak Mishra and Indu Malhotra. Because of them, all consensual sex between adults including homosexuality was decriminalised on September 7, 2018.

History of Section 377

1861: Section 377 was introduced by the British Raj during this year. The drafting for this section was constituted long back by Thomas Macaulay in 1838. This act was initiated by the buggery act of 1533 which states that buggery is unnatural sex against the principles of nature and God.

2001 and 2004: An NGO called Naz foundation challenged the validity of section 377 in Delhi HC. The court then dismissed the PIL in 2004.

2018: On July 10, a five-judge bench begin hearing pleas challenging the constitutionality of section 377. On September 6, the court’s verdict to repeal section 377 brought a moment of joy among several people.

Definition of Section 377

Whoever voluntarily engages in carnal intercourse against nature with any man, woman or animal shall be punished with life imprisonment or imprisonment of either term not exceeding 10 years and shall also charge with fine.

Here the term against nature has not been defined in any source of law. Hence deciding on the sexual choice of people was a clear violation of the fundamental rights of people belonging to the LGBT community. Though homosexuality has been decriminalised, crimes like bestiality and child abuse are still punishable under this section.

Nature

Section 377 is considered to be a serious offence. Hence it is a cognizable and non-bailable offence. It can be tried in the court of judicial magistrate first class.

Naz Foundation v. Govt. of NCT of Delhi

The Delhi HC issued a groundbreaking judgement with a very liberal approach. The court noted that this section infringes upon the privacy of two consenting adults which is an essential part of the right to life under article 21. It also ruled at categorising people based on sex violates another basic fundamental right which is article 14 of the Indian constitution which states that everyone should be treated equally.

The court struck down only a few portions of section 377 of IPC. Non-consensual and nonvaginal intercourse is still illegal and bestiality is still a crime.

With respect to Article 14

Article 14 states that equal must be treated equally. In the Bhudhan Choudhary case, the court observed that article 14 forbids class legislation but it does not rule out reasonable classification.

Section 377 of the IPC penalises persons who indulge in carnal intercourse aiming at the protection of women and children. But the non-consensual acts criminalised by section 377 of the IPC are already meant as penal offences under section 375 IPC and the POCSO act.

Conclusion

The Navtej Singh Johar case and the NALSA judgement were only stepping stones towards the development and protection of the fundamental rights of the LGBT community of India, we still have a very long way to go. To treat these people like they are not normal is a crime in itself, nobody deserves to feel that way, especially not based solely on their sexual choices.

India is progressing continuously in various sectors, and we are being recognised for our innovations and our technology. Why not be recognised for our inclusivity? We all studied in school that “unity in diversity” is India’s most distinguishing feature as a democracy. It’s time that we follow it in reality.

Our history, our culture, and our monuments, all have accepted same-sex relationships, then why can’t we people do the same? We are the youth of the country, and I say, it’s time to work on a better society, for one and for all. It is essential to ensure that our future generations do not have to fight for basic human rights and to be treated with dignity.

References:

1. https://blog.ipleaders.in/striking–section–377–ipc–overview/?amp=1
2. https://www.legalserviceindia.com/legal/article–6402–case–summary–navtej–singhjohar–v–s–union–of–html
3. https://indiankanoon.org/doc/1836974/
4. https://www.lawctopus.com/academike/history–of–homosexuality–in–india/
5. https://blog.ipleaders.in/case–comment–navtej–singh–johar–v–union–india/

This article has been submitted by Sonal Priya, a student at Lovely Professional University.