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L E G A L C O R N E R

A ray of hope for LGBT as SC to

revisit Section 377 of IPC

The decision by the Supreme Court to review its 2013 judgment setting aside the Delhi High Court’s verdict
scrapping Section 377 is welcome. It is time that Indian Penal Code reflects the diverse and progressive nation that
India is

Rekindling hope among many fighting for LGBT rights, far as it criminalises consensual sexual acts of adults in
the Supreme Court on 8 January 2018 decided to revisit its private as violative of Articles 14, 15 and 21 of the
December 2013 order upholding the constitutional validity Constitution. A review against the 2013 decision was
of Indian Penal Code section 377, which criminalises dismissed and a curative petition — a curative plea is filed
same-sex relations between consenting adults. A three- after the review petition — is pending in the Supreme
judge bench of Chief Justice of India Dipak Misra and Court.
Justices AM Khanwilkar and DY Chandrachud, referred Salient features of the NAZ Foundation judgment
the matter to a larger bench to be constituted by the CJI  Notwithstanding this verdict, the competent legislature
and also sought the assistance of Union of India in the shall be free to consider the desirability and propriety
matter. of deleting Section 377 from the statute book or amend
The Bench said a section of people cannot live in fear it.
of a law which atrophies their right to follow their natural  Those who indulge in carnal intercourse in the ordinary
sexual inclinations. It said societal morality changes with course and those who indulge in carnal intercourse
time, and law should change pace with life. against the order of nature constitute different classes.
While the court noted that Section 377 punishes carnal  Section 377 merely defines a particular offence and
intercourse against the order of nature, it added, “The prescribe punishment for the same which can be
determination of order of nature is not a common awarded if, in the trial a person is found guilty.
phenomenon. Individual autonomy and individual natural Therefore, the High Court was not right in declaring
inclination cannot be atrophied unless the restrictions are Section 377 ultra vires Articles 14 and 15 of the
determined as reasonable.” Constitution.
The court observed that what is natural for one may  High Court overlooked that a miniscule fraction of
not be natural for the other, but the confines of law cannot the country’s population constitutes lesbians,
trample on or curtail the inherent rights embedded with gays, bisexuals or transgenders (LGBT), and in the
an individual under Article 21 (right to life) of the more than 150 years past, less than 200 persons
Constitution. have been prosecuted for committing offence under
The court agreed that both its decisions emphasising Section 377, and this cannot be made a sound basis for
transgender identity in the NALSA case and the
observations made by a nine-judge Bench in the right to Section 377 of IPC
privacy case upholding the right to sexual orientation and Section 377 of IPC – which came into force in 1862 –
choice of sexual partners warrant a re-look into its defines unnatural offences. It says, “Whoever voluntarily
dismissive verdict in the Naz case. The order reveals a has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with
paradigm shift in the apex court’s views.
imprisonment for life, or with imprisonment of either
Background
description for a term which may extend to 10 years,
In December 2013 ruling on Suresh Kumar Koushal and
and shall also be liable to fine.” Moreover, the law also
another vs NAZ Foundation and Others, the bench of
mentions that “penetration is sufficient to constitute the
Justices GS Singhvi and SJ Mukhopadhaya upheld the
carnal intercourse necessary to the offence described in
validity of the British-era provision, upsetting a 2009 verdict this section”.
of the Delhi High Court which held IPC section 377 in so
March 2018 Competition Wizard 145