377 IPC

Supreme Court says ‘adult consensual same sex is crime in India’ this is what SC said after 63 years of Constitution and made large number of people who are identified themselves either as Gay, lesbian Bisexual Transgenders,  Hijara and Kothis (L.G.B.T) persons  are criminals in the eye of law enacted in the year 1860 by British Rulers against India.

02.07.2009 was the day of joy for many LGBT Community as the Delhi High Court has said in many words that,

“We declare that Section 377 IPC, insofar it criminalises 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 172nd 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”.

 The challenge basically was,

1.     Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms,

2.     The submission is that the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society.

3.     By criminalising private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts.

4.     Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision.

5.     that Section 377 IPC's legislative objective of penalizing "unnatural sexual acts" has no rational nexus to the classification created between procreative and non- procreative sexual acts,

6.     That the expression "sex" as used in Article 15 cannot be read restrictive to "gender" but includes "sexual orientation" and, thus read, equality on the basis of sexual orientation is implied in the said fundamental right against discrimination.

State and the others at the High Court argued that:

1.     there is no fundamental right to engage in the same sex activities.

2.     In our country, homosexuality is abhorrent and can be criminalised by imposing proportional limits on the citizens' right to privacy and equality.

3.     that right to privacy is not absolute and can be restricted for compelling state interest.

4.     Article 19(2) expressly permits imposition of restrictions in the interest of decency and morality.

5.     Social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India.

6.     that Section 377 IPC is not discriminatory as it is gender neutral. If Section 377 IPC is struck down there will be no way the State can prosecute any crime of non- consensual carnal intercourse against the order of nature or gross male indecency.

7.     that Section 377 IPC is not enforced against homosexuals and there is no need to "read down" the provisions of Section 377 IPC.

8.     that spread of AIDS is curtailed by Section 377 IPC and de-criminalisation of consensual - same - sex acts between adults would cause a decline in public health across society generally since it would foster the spread of AIDS.

9.     that Section 377 IPC does not impact upon the freedom under Article 19(1) as what is criminalised is only a sexual act.

10.                        Indian society considers homosexuality to be repugnant, immoral and contrary to the cultural norms of the country.

And this provision its violates,

1.     that while right to privacy is implicit in the right to life and liberty and guaranteed to the citizens,

The Law: Until the decision of the Supreme Court in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, a rather narrow and constricted meaning was given to the guarantee embodied in Article 21. Any law interfering with personal liberty of a person must satisfy a triple test:

(i)                            it must prescribe a procedure;

(ii)                         the procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and

(iii)                       it must also be liable to be tested with reference to Article 14. As the test propounded by Article 14 pervades Article 21 as well, the law and procedure authorising interference with the personal liberty must also be right and just and fair and not arbitrary, fanciful or oppressive

Supreme court in Menaka Gandi case said “If the procedure prescribed does not satisfy the requirement of Article 14, it would be no procedure at all within the meaning of Article 21.” And even in Khark Singh: “held that though our Constitution did not refer to the right to privacy expressly, still it can be traced from the right to "life" in Article 21. Justice Subba Rao, J. while concurring that the fundamental right to privacy was part of the right to liberty in Article 21, part of the right to freedom of speech and expression in Article 19(1)(a), and also of the right of movement in Article 19(1)(d), held that the Regulations permitting surveillance violated the fundamental right to privacy. In effect, all the seven learned Judges held that the "right to privacy" was part of the right to "life" in Article 21.

And now we have the Court monitoring private life’s of People :-