BY NUPUR GARG
Section 377 refers to Unnatural Offences and says whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animals, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to pay a fine.
This section 377 of IPC introduced in 1861 during the British rule of India. Against the order of native is illegal previous to that there was no law governing sexual intercourse in India. This section 377 of IPC makes criminals out of homosexuals’ section 377 is not merely a law about ANAL SEX alone, but it applies to homosexuality in general. The lacks of consent based distribution in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity section 377 is the biggest affront to the dignity and humanity of substantial minority of Indian Citizens.
INGREDIENTS OF SECTION 377
The accused must have a carnal intercourse with a man or woman or animal.
The act ought to be against the order of nature.
The act is done voluntarily by the accused.
There is a proof of penetration.
The unnatural offences discussed under this section are:
It generally denotes intercourse per annum by a man with a man or with a woman or with an animal. It may be homosexual or heterosexual consent is immaterial here.
It means sexual intercourse either by a man or by a woman covered out in any way with beast or a bird.
The constitutional validity of section 377 was challenged in the Delhi High Court in the case of Naz Foundation v Government of Delhi & Ors. In this case it was argued that s 377 on account of covering consensual sexual intercourse between two adults in private, is violative of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution. It was also contended that Article 21 can be curtailed only in case of compelling state interest which is missing in this case. The petitioner also contended that the legislative intent behind section 377 is based on stereotypes that are outmoded and have no historical or logical backing. They also argued that the expression “sex” as used in Article 15 also includes “sexual orientation” and thus according to Article 15 there can be no discrimination on the basis of sexual orientation. Broadly they prayed before the court that section 377 of IPC should be declared ultra vires to the constitution, insofar it criminalizes consensual sexual acts of adults.
The punishment in case of unnatural offences is as severe as that of rape. Unnatural offences cover all form of penetration other than penile vaginal and consent is immaterial in case of unnatural offences. The punishment may extend to imprisonment for life or imprisonment up to ten years and fine. In Norshiwan Irani, it was held that in case of offences made punishable under section 377, it is necessary that penetration, however little, must be proved strictly.
NAVTEJ SINGH JOHAR V/S UNION OF INDIA
Writing for himself and justice of Khan Willkar, the Chief justice has raised the individual’s identity to the pedestal of divinity san’s identity the name is only a denotative term the sustenance of identity is a filament of life.
The destruction of individual identity would tantamount to the crushing of dignity, which encapsulated privacy, choice freedom of speech and other expressions. Attitudes and mentalities have to change to accept distinct identities of individuals who must be respected for who they are and not compelled to become who they are not.
The court found that the criminalization of sexual acts between the constituting adults violated the rights to equality guaranteed by the constitution of India. While reading judgments chief justice pronounced that court found that “criminalizing carnal intercourse “to be irrational, arbitrary, and manifestly unconstitutional. The court ruled that LGBT is in India are entitled to all constitutional rights including liberties protected by the constitution of India.