Sec 377 of IPC – 10 jan update

source - youtube

 

NEW POINTS IN PURPLE

 


 

Evolution of Thought on Homosexuality

  1. For most of human history,
    • homosexuality has been considered a sin across religions and was punished severely.
  2. However, by the end of the 19th century,
    • homosexuality was described as a psychological problem.
  3. In the 20th century, a dominant view emerged that
    • homosexuality was inborn and therefore not immoral, and it was not a disease.
  4. However, even in the 21st century, there is still no unanimity on the issue
    • and resistance persist, despite it being decriminalised in many countries.

 

Sec 377

  1. Colonial origins
    • 19th century victorian morality imposed on India.
    • Prior to Sec 377, homosexual acts were not criminalised in India.
  2. Criminalises
    • “carnal intercourse against the order of nature” ⇒ ambiguous terminology
  3. Naz Foundation judgement of Delhi HC (2009) held that
    • criminalising consensual and private sexual acts (among adults) not only impairs the dignity of the accused, but it is also discriminatory and impacts their health.
    • It, thus, declared Sec 377 to be violative of Art. 14, 15 and 21 of the constitution.
  4. SC upheld Sec 377
    • in Suresh Kaushal Case, 2013
      • which the Delhi HC had declared as unconstitutional in the Naz Foundation Case, 2009.
    • The SC had held that
      1. Sec 377 could stay in the law books as the LGBT community constitutes only a ‘minuscule minority’ of the population of India.
      2. There was little evidence that the provision was being misused, misuse of law does not make it invalid.
      3. Those having sexual intercourse “against the order of nature” constituted a separate class on which the law could validly impose penal sanctions.  (⇒ SC rejected equal citizenship rights (Art. 14) to the LGBT)
      4. The provision can be diluted only through the legislative route. (i.e no judicial activism here)
  5. NALSA judgement, 2014
    • The SC held that
      1. ‘Transgenders’, even though insignificant in numbers, are entitled to human rights.
      2. Sec 377 had been an instrument of harassment and abuse.
      3. Advocated the adoption of the Yogyakarta Principles (norms on gender identity and sexual orientation adopted by human rights experts in 2006)
  6. Puttaswamy Case, 2017
    • The SC has held that
      1. “Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”
      2. “Social morality changes from age to age”
      3. “Sexual orientation is an aspect of the right to privacy and an inalienable part of human dignity, freedom, and personal liberty”. ⇒ No longer can sex acts in private be overseen by law.
      4. “The rationale (‘miniscule minority’) behind the Kaushal judgment is erroneous and unsustainable.”
      5. “The rights of LGBT persons are ‘real rights’ founded on sound constitutional doctrine and not “so-called rights” as the Kaushal Bench had opined.”
  7. Should Sec 377 be repealed?
    1. Yes, because
      1. It is discriminatory
        • It violates rights granted under Art. 14, 15 and 21 of the consti.
      2. It causes great humiliation and harassment
        • LGBTs face constant threat of blackmail (by acquaintances) and arrest.
        • Life becomes humiliating, as the LGBT are socially ridiculed and mocked at.
      3. Global trends
        • Most progressive countries, including Britain, have decriminalised homosexuality.
        • India remains more British than the British themselves!
    2. No, because
      • It violates religious morality.
    3. Way forward
      • LGBTs must have equal rights in a democracy. They deserve a dignified life.
      • Public display of affection should be tempered by reasonable restrictions.
      • Change the relevant laws to protect gullible/vulnerable persons against inappropriate conduct.
    4. Final word
      • A democracy must ensure that each member is able to lead the life she wants, without hurting the sentiments of her fellow citizens.
  8. Potential hurdles
    • The talaq ruling held that ‘a practice bad in religion cannot be good in law’.
      • This can imperil LGBT rights in India as homosexuality is proscribed in some religions.
  9. Final word
    • The NALSA judgment, 2014 is a landmark one.
      • It upheld the right to choose one’s sexual orientation (though it did not read down Sec 377)
    • Big blow to Kaushal judgement – the Puttaswamy verdict
      • ‘Kaushal’ (though not read down) was put alongside ‘ADM Jabalpur’ to highlight its constitutional impropriety.
    • Puttaswamy offers a strong constitutional articulation to challenge
      • The rejection and prosecution of LGBTs for their choices.
      • The view that homosexuality is a medical illness.
      • Lack of safety in public places for LGBTs.
    • A strong body of constitutional jurisprudence (2014 and 2017 judgements)
      • is now available to target Sec 377.
  10. Way forward
    • The argument against Sec 377 must, ideally, be based on the right to equality (and non-discrimination) and not just on the right to privacy.
      • Sec 377 must be read down on the grounds that it is arbitrary and draconian in scope.
    • Adopt the Yogyakarta principles, 2006
      • NALSA, 2014 judgement shows the way.

 

 

QUESTIONS

  1. Sec 377 is as much about ‘equality’ as it is about ‘privacy’. Elaborate.
    • 200 words.
  2. Comment on the significance of Puttaswamy judgement w.r.t LGBT jurisprudence.
    • 200 words.
  3. Should Sec 377 be repealed. Discuss critically.
    • 200 words

 

 

 

  • Sam

    thank you very much!
    well covered all the aspects.
    keep posting…

    • Pacific Spirit

      Thank you for the kind words. Kindly spread the word if u like our work.