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Legal Voyage of Section 377 of Indian Penal Code 1860

The bare act text of section 377 of Indian Penal Code is as under:

“377. Unnatural offences—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.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

The on-going legal fight on Section 377 of the Indian Penal Code finds its origin long back in the year 1991. This article aims to trace the historic journey of section 377 of Indian Penal Code.

1991: This year can be marked as the inception year for the demand of decriminalization of Section 377. The demand found its voice in AIDS Bhedbhav Virodhi Andolan in 1990. During the course of this andolan the publication “Less than Gay: A citizen’s Report” was widely circulated amongst the masses. The publication highlighted the problems with section 377 and strongly advocated for its repeal.

2001: The NGO Naz Foundation filed a Public Interest Litigation (PIL) at Delhi High Court wherein the constitutional validity of Section 377 came up for discussion. The NGO pleaded the unreasonableness of section 377 as it penalizes even  consensual sexual acts between two adults in private which is turn is violation of Article 14, Article 19 and Article 21 of Indian Constitution.

2004: The Delhi High Court was reluctant to entertain the PIL and thereby dismissed it with the observation that it is purely an academic issue which has been raised before the courts of law. Further in the same year it dismissed the review petition also filed against it original order of refusing to entertain the PIL of Naz Foundation.

2006: The Hon’ble Supreme Court admitted the petition challenging the above stated refusal order of Delhi High Court and referred the matter back to Delhi High court with clear directions to consider the matter on merits.

2009: In Naz Foundation v. Government of NCT Delhi, Delhi High Court showed judicial activism and decriminalized consensual same sex between adults. It observed that Section 377 violates Article 14, 15 and 21 of the constitution of India. The judgement was celebrated by the members of the LGBT community and for first time the streets were dotted by the members of community without any fear of administration and society. The union Government did not challenge the judgement but several Special Leave Petitions were filed in Supreme Court challenging the judgement.

 2013: In Suresh Kumar Koushal and Anr. v Naz Foundation and Ors. The two judge bench of Supreme Court upheld the constitutional validity of Section 377. It ruled that “Section 377 does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation”

The Apex Court justified its stand with following observation “a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or trans genders and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”

2014:  National Legal Services Authority v. Union of India is a landmark decision by the Supreme Court of India, which declared transgender people to be a ‘third gender’, affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. This judgement is a major step towards gender equality in India. Moreover, the court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.

 2017: The Supreme court in Justice K.S. Puttaswamy v. Union of India   judgement holds that right to privacy is a fundamental right and the court gave its observation on Sexual orientation as it is an essential component of identity and upheld that rights of LGBT community as real rights based on constitutional doctrine.

2018(January): The petitions challenging Section 377 are referred for consideration by a larger bench with the observation that as far as section 377 destroys individual choice and sexual orientation, it cannot be regarded as a reasonable restriction on the exercise of one’s fundamental rights.

 2018(July): The constitutional Bench consisting of Chief Justice Dipak Misra, Justice A.M Khanwilkar, Justice D Y Chandrachud, Justice R F Nariman and Justice Indu Malhotra begins the hearing on petitions filed against Section 377 of Indian Penal Code.

The whole nation is waiting anxiously for the verdict of the apex court on this crucial issue with lot of hopes and aspirations. In order to give the apex court complete freedom and liberty in deciding the issue, the center has decided not to contest the petition challenging Section 377 of Indian Penal Code 1860. We sincerely hope the decision of Supreme Court will consider the long suppression and exploitation of Lesbian, Gay, Bisexual and Transgender (LGBT) community and will help to realize the noble principle of no discrimination amongst the citizens  on the basis of race, caste, sex and religion as enshrined in our constitution.

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