Professional Documents
Culture Documents
Punjab(INDIA)
Review Paper on
Section377 of Indian Penal Code
Constitutional law II (LAW-126)
Submitted to Madam Neeru Mittal
BY-Shivam Singh
(Reg: -11611419)
(Section: -L1604/B31)
Index
1. Introduction
2. Statement of problem
3. Research methodology
3.1. Aim and objectives
3.2. Scope and Limitations of the paper
3.3. Method of writing
3.4. Hypothesis
3.5. Research Questions
4. Legal history
5. Global trends
6. Laws involved
7. Case analysis of Naz Foundation V. Gov. of NCT and others (WP(C)
No.7455/2001) Date of
decision: 2nd July, 2009
7.1. Judgement of the case
8. Law commission on Section 377
9. Conclusion
10. Bibliography
1. INTRODUCTION
Although the civil rights movement has gone to the extent to include a
greater part of the world, but there are only few organizations whose major
aim is to fight for the rights of the Homosexuals.
The LGBT (Lesbian-Gay-Bisexual-Transgender) activism has raised the issue
of sexuality and, in particular, alternative sexuality, and argues for its
'normalcy'. The state, on the other hand, has taken exception to such
democratization of 'desire' and has tried to 'discipline' it.
The present era of society is becoming much deeper and democratizing
which earlier was moreover privileged to a private sphere which now is
becoming more open for debate and discussion. Also, has been a drastic
development in the democratization in the sphere of desire. Which
significantly cant be left un-noticed by the larger sect of society.
This review examines the provision in Penal Code of India that criminalized
private consensual sex between adults. Law had led to serious discrimination
against homosexual people.
Suffering from frequent beatings and blackmail attempts by police and
neglection from society.
NGOs working with sexual minorities have also been harassed charged
under Section 377, by stigmatizing homosexuality and threatening gay.
After an innovative, sustained, mass media campaign by activists
coalition brought together sexuality and LGBT who were previously
marginalized, with groups working in areas such as children's feminist
groups, showing that support for non-discrimination towards sexual
broad-based.
Further legal and social changes are needed for LGBT individuals
acceptance and equality within.
It is the matter of great concern for the worlds biggest democracy, not
only for the LGBT (Lesbian, Gay, Bisexual, Transgender) people but also
for the whole society because it is the question of validity and
protection of fundamental rights which can be referred as the
structural base of democratic society and justice.
There is a need to eliminate section 377 of the Indian Penal Code as it is
clearly violative of Articles 14, 15, 19 & 21 and its sub sections guaranteed
as Fundamental Right in The Constitution of India.
2. Statement of Problems
There are significantly many major problems which are discussed below:
1.Treatment of the rights of homosexual people, not just to engage in
consensual sexual intercourse in private, but also to a life of dignity free from
State discrimination and intrusion
2.Need to recognize and work for the betterment of LGBT (Lesbian, Gay,
Bisexual, Transgender) section of the society.
3.The current family laws need to be modified in order to be incorporate with
the LGBT section.
4.LGBT are considered as against the order of the nature under Section 377
of IPC.
5.Section 377 of IPC is violative of fundamental rights stated in 3rd part of
the constitution.
3. Research Methodology
3.1. Aim and Object of the Paper:
The aim and object of this research paper is to better understand the
working and interpretation of Section 377 of the Indian Penal code and in
doing so analyze the realities of the failure of this section over the years and
the changes to be able to reconcile the legislative intent with the politico-
social reality. An attempt will be made by the researcher to evaluate whether
or not the section 377 of IPC is violative of the part 3 of the constitution of
India. The section 377 of IPC penalizes the so called unnatural carnal
intercourse between consented individuals.
4. Legal history
6. Laws Involved
Section 377 in The Indian Penal Code 1860
377. Unnatural offences. Whoever voluntarily has carnal intercourse
against the order of nature with any man, woman or animal, shall be
punished with 1[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.
Article 13 in The Constitution of India 1949
13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the
commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void
(3) In this article, unless the context otherwise requires law includes any
Ordinance, order, bye law, rule, regulation, notification, custom or usages
having in the territory of India the force of law; laws in force includes laws
passed or made by Legislature or other competent authority in the territory
of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution
made under Article 368 Right of Equality
7. Case analysis of
Naz Foundation V. Gov. of NCT and others
WP(C) No.7455/2001 Date of
decision : 2nd July, 2009
The Naz Foundation submitted that the harassment and discrimination of the
gay and transgender community in India resulting from the continued
existence of Section 377 affected the rights of that community which were
guaranteed under the Constitution, including the right to equality, the right
to nondiscrimination, the right to privacy, the right to life and liberty, and the
right to health.
They argued that the Constitution protects the right to privacy (which is not
expressly mentioned) under the right to life and liberty enshrined in Article
21. Furthermore, they submitted that the right to non-discrimination on the
ground of sex in Article 15 should not be read restrictively but should include
sexual orientation.
They also contended that the criminalization of homosexual activity by
Section 377 discriminated on the grounds of sexual orientation and was
therefore contrary to the Constitutional guarantee of non-discrimination
under Article 15. Finally, the Naz foundation stressed that courts in other
jurisdictions have struck down comparable provisions relating to sexual
orientation on the grounds that they violated the rights to privacy, dignity
and equality.
7.1. Judgement
132. We declare that Section 377 IPC, insofar it criminalizes consensual
sexual acts of adults in private, is violative of Articles 21, 14 and 15 of
the Constitution. The provisions of Section 377 IPC will continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal
sex involving minors. By 'adult' we mean everyone who is 18 years of
age and above. A person below 18 would be presumed not to be able
to consent to a sexual act. This clarification will hold till, of course,
Parliament chooses to amend the law to effectuate the
recommendation of the Law Commission of India in its 172 nd Report
which we believe removes a great deal of confusion. Secondly, we
clarify that our judgment will not result in the re-opening of criminal
cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
CHIEF JUSTICE
S. MURALIDHAR, J JULY 2, 2009
Naz Foundation V. Gov. of NCT and others
WP(C) No.7455/2001 Date of
decision: 2nd July, 2009
8. Law commission against section 377
- Law commission of India 172 report on review of rape laws. (D.O.No.6(3)
(36)/2000_LC(LS) March 25, 2000)
9.Conclusion
Section 377 is in violation of Right to Privacy and Right to Life as you can't
restrict the freedom of consenting people as far as their freedom is not
hurting anyone else.
This section is just an instrument of exploitation and it is almost not
possible to decide what type of sex do two consenting individuals are having
in private. It has been noted that section 377 is mostly used to harass sex
workers and AIDS/HIV affected people.
British's, who had imposed this inhuman provision on people of India, has
removed this kind of provision from their law.
There have been many positive developments in favor of Lesbian, Gay,
Bisexual and Transgender (LGBT) community on the international front. In
May 2015, Ireland legalized same-sex marriage. The country which had
decriminalized homosexuality in 1993 became the first country to allow
same sex marriage a national level by popular vote.
In June 2015, the US Supreme Court ruled that same sex marriages were
legal. Near home, Nepal legalized homosexuality in 2007 and the new
Constitution of the country too gives many rights to the LGBT community.
France, UK, Canada, United States, Australia and Brazil have de-
criminalized homosexuality. Other countries like Belgium, Brazil, Canada,
France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain,
Sweden and Uruguay allow either same sex marriage or a civil union.
Also the law commission of India significantly suggested to repeal the section
377 in the light of fundamental rights and said that its work was only to
avoid child abuse , rather not to criminalize consenting adult individuals.
Thus, consensual sexual activities between two adults of the same sex
should not be regulated by a law as it violates their Fundamental Rights and
a persons choice of sexual accomplice is no business of the State to regulate
on.
Section 377 is abused to brutalize the persons belonging to the gay
community. Popular morality, as distinct from constitutional morality as
derived from constitutional values, is based on shifting notions of right and
wrong and as of today, a large chunk of elite population is in favor of the
LGBT rights and hence, this shows that the State is not even going by the
popular morality but by its own morality and if there is any type of morality
that can pass the test of compelling state interest, it should be constitutional
morality.
11. Bibliography
1. Law commission 172 report.
2. Wikipedia
3. Manupatra
4. indiakanoon.com
5. SAME-SEX LOVE AND INDIAN PENAL CODE Section 377:AN IMPORTANT
HUMAN RIGHTS ISSUE FOR INDIA -by Robert Wintemute
6. Gay Rights in India
Author(s): Vimal Balasubrahmanyan
Source: Economic and Political Weekly, Vol. 31, No. 5 (Feb. 3, 1996),
pp. 257-258
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/4403740
Accessed: 25-03-2017 22:40 UTC
7. A Ruling against Discrimination
Source: Economic and Political Weekly, Vol. 44, No. 28 (Jul. 11 - 17,
2009), p. 5
Published by: Economic and Political Weekly
Stable URL: http://www.jstor.org/stable/40279247
Accessed: 25-03-2017 22:40 UTC
8. The Constitution of India 1949
9. Indian Penal Code 1860
10. All India Reporter (AIR)