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Category: Indian Law
Posted By: [Anonymous]
Section 377 of IPC (Indian Penal Code)
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The recent years have seen nations adopt a pro LGBTQ stand. In India, on the other hand, the situation is a little bit complex. Keeping in mind the societal norms of the Indian society, what stance should the Supreme court take with respect to section 377 of the Indian Penal Code (IPC)?
5 Answers found.
DR.N.V. Srinivasa Rao
(₹ 6)
Section 377 of the Indian Penal Code is an archaic law which was introduced during the British era in the 1860s. It makes gay sex a crime. The punishment can be a life term. As per these Sexual activities which are against the law of nature are punishable
This Indian Penal Code states, "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." Oral and anal sex in private is currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.
In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights. Religious groups had gone to the Supreme Court against the verdict
In 2013, the Supreme Court gone against the verdict of the high court and stated that this is in the purview of the parliament.
This decision is a seen as a major setback for human rights and was also widely criticized.
On this matter, different parties have different opinions and within the same party also there is a difference of opinions between the leaders. The supreme court now says the government should act quickly otherwise any moment if the court feels that this is a violation to fundamental rights they can come out with their verdict legalising the unnatural sex.
Anyhow, we have to wait and see the decision in this matter from all the political parties and the court also.
drrao
always confident
Venkiteswaran
Courts take stand by analysing and interpreting to see if the provisions go against the guarantee given by constitution.If any provision is against constitution. It is irrespective of what the society sees it or how many people are for it and against it.
As far as nothing is established about anything going against the nation's security and interest, courts will ensure that there is equality before law and every one gets the protection and rights guaranteed by Constitution.
From the verbal comments and interference and enquiring questions posed by the learned Judges during the arguments stage, t is just my academic guess that the final verdict may be in favour of the LGBTQ side or at lest a balanced one which has favourable tilt to them.
But after all we are getting what is reported in the media and may not know the full picture and points involved for adjudication. We are not competent nor supposed to sit on judgement on a case in court. Hence let us wait for the final order from courts.
himanshuchouhan
Section 377 of Indian penal Code dating back to 1860, brought in at the time of the British rule of india, criminalizes. Non-procreative sexual acts and any act of sexual obstinacy. Criminalising sexual activities with concession in private not only harm the excellence of those persons focused by the law but it is also biased and impact the health of those peoples. Gay men are seen as criminals by the law because of section 377 of IPC and thus by other members of society. In 2009,ECI allowed transsexuals choice of registering under seperate sexual indentity(other). Section 377 of the Indian Penal Code makes sex with persons of the same gender punishable by law. On 2 July 2009, in Naz Foundation v. Govt. of NCT of Delhi, the Delhi High Court held that provision to be unconstitutional with respect to sex between consenting adults, but the Supreme Court of India overturned that ruling on 11 December 2013, declaring that the court was instead extending to Indian parliament to impart the sought-after clarity.
(₹ 10)
In the Indian Penal Code that dates back to 1862,the chapter XVI deals with offences against the human body.In this, the section 377 deals with unnatural ( carnal) intercourse with humans or animals. The other important clause/ implications is 'AGAINST THE ORDER OF NATURE'. This is where the clash of our Indian traditions and the gay unions come. Ironically, this has been happening since ancient times behind closed doors or closed circles, so, it reality, it is nothing very new that we should struggle so much with.
Our IPC is based on the British laws and was in place during the British rule. If one looks at LGBT in England, it was NOT allowed under the Buggery Act of 1533. But as late as 1967, sexual acitivity between men was de-criminalised. Interestingly, sexual activity between women was not in the original law.
Same sex marriages were legalised in England only around 2014 and even this is not legal in Northern Ireland.
So, what this means is even the British Society, has struggled for years to come up with the idea of accepting gay relationships and marriages. It is no surprise that even in India, we are or would under the same turmoil.
Given the rapid access and spread of internet, youths and adults moving around for various reasons and the way the world is changing its views, we in India too, should be prepared to accept gay relationships. Here the job of the Supreme Court is tough. It should start by accepting in a phased manner.
First, it should recongise these sexual orientations, altough abnormal in the traditional sense can be permitted provided no harm is done (socially, financially and legally). This would help in lowering the stigma around LGBT.
Second, it should direct the states to have stringent laws with regards to ensuring safety of the LGBT.
Third, it should set a legal framework along with public consultation, with regards to the legalisation of such relationships into a formal marriage.
Fourth, it should also pass rules that regulate the rights of property of people in the LGBT from the family homes and the homes that they enter after the marriage is legalized.
Lastly, it should also have clear plans and guidelines regarding the care of the children who are adopted or fathered out of surrogacy etc, their educational rights, property rights etc.
So, in short, yes the honorable SC has to soften its stance and pass a landmark judgement in a phased manner because, the gay relationships etc are well established and if the SC does not accept it, then we are just delaying the inevitable and inviting more trouble.
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