Section 377 of Indian Constitution.

Everything you need to know about Section 377 of Indian Constitution and Verdict by Supreme Court. Short but Very Helpful.

1. The Read Down Of Section 377 of Indian Penal Code ! Section 377 ? What has Happened so far ? Overturning decision by SC ? Legislative Action and Right to Privacy ! The Supreme Court Verdict. © Haruhit Kunwar

2. What is Section 377 of Indian Penal Code ? Section 377 of the Indian Penal Code criminalises consensual private sexual acts between adults. It came into force in 1862 during the British rule of India. The penal provision says “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 10 years, and shall also be liable to fine .” It actually violates the article 14, 15 and 21 of Indian Constitution. © Haruhit Kunwar

3. What had happened so far ? Naz Foundation (India) Trust, an activist group, filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. However in 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners, had no locus standi ( ability of a party to demonstrate to the court sufficient connection to and harm from the law ) in the matter. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377. On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated . Eventually, in a historic judgement delivered on 2 July 2009 , Delhi High Court overturned the 150-year-old section ,  legalising consensual homosexual activities between adults . In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law. © Haruhit Kunwar

4. The overturning Decision By SC in 2013 !! On 11 December 2013, the Supreme Court of India set aside the 2009 judgement given by the Delhi High Court stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse "against the order of nature“. Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated — "In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable." © Haruhit Kunwar

5. Legislative Action and Right To Privacy !! On 18 December 2015, Lok Sabha member Shashi Tharoor of the Indian National Congress, introduced a private member's bill to replace Section 377 in the Indian Penal Code and decriminalise consensual same-sex relations. The bill was defeated in first reading In March 2016, Tharoor tried to reintroduce the private member's bill to decriminalise homosexuality, but was voted down for the second time. On 24 August 2017, the Supreme Court of India held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian Constitution. The judgement mentioned Section 377 as a "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy .“ “ Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. 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. © Haruhit Kunwar

6. The Supreme Court Verdict 2018 !! In 2018, the five-judge constitutional bench of the Supreme Court started hearing the challenge to constitutionality of Section 377 . The bench pronounced its verdict on 6 September 2018.Announcing the verdict, the court reversed its own 2013 judgement of restoring Section 377 by stating that using the section of the IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act. In its ruling, the Supreme Court stated that consensual sexual acts between adults cannot be a crime, deeming the prior law "irrational, arbitrary and incomprehensible.“ Supreme Court on its 2018 verdict says that : “Consensual adult gay sex is not a crime and article 14 and 21 of Indian Constitution contradict the present view of Section 377 .” © Haruhit Kunwar