Section 377 based on law passed by Henry VIII in 1533 - Pragnya IAS Academy - News Analysis.

Section 377 based on law passed by Henry VIII in 1533.

The Supreme Court, which unanimously struck down part of the British-era law that criminalised gay sex, has traced the history of the 158-year-old provision in its judgement back to the reign of King Henry VIII in 1533.

A five-judge constitution bench comprising Chief Justice Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malohtra said that the Section 377 of the Indian Penal Code (IPC) violated the constitutional right to equality and dignity.
Justices Nariman and Chandrachud, in their separate concurring judgements, dealt in detail about the evolution of the section as it exists in the present form. Justice Nariman said section 377 was modelled on the Britain’s Buggery Act of 1533 which was brought in by the then king Henry VIII which prohibited “the detestable and abominable offence” of buggery (anal intercourse) committed with mankind or beast.
The word “buggery” is derived from the old French word “bougre” and was taken to mean anal intercourse, Justice Chandrachud said in his judgement. “The Buggery Act, 1533, which was enacted by Henry VIII, made the offence of buggery punishable by death, and continued to exist for nearly 300 years before it was repealed and replaced by the Offences against the Person Act, 1828. Buggery, however, remained a capital offence in England until 1861, one year after the enactment of the IPC,” Justice Chandrachud said.
He said that Section 377 was allowed to operate in Independent India as under Article 372 (1) “all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed”. Justice Nariman said 8,921 men were indicted between 1806 and 1900 for “sodomy, gross indecency or other unnatural misdemeanours” in England and Wales.
On an average, ninety men per year were indicted for homosexual offences during this period, he said. “Most of the men convicted were imprisoned, but between 1806 and 1861, when the death penalty for sodomy was finally abolished, 404 men were sentenced to death. Fifty-six were executed, and the remainder were either imprisoned or transported to Australia for life,” he said.
Referring to the rule of East India Company in the country, Justice Nariman said the then Parliament had established the Indian Law Commission and in 1833, Thomas Babington Macaulay was appointed as its head. Justice Nariman wrote that Lord Macaulay’s draft was substantially different from what was finally enacted as Section 377.
He wrote that even in the most “prudish of all periods of English history”, Lord Macaulay had recognised a lesser sentence for the crime of “unnatural lust”, if performed with consent. After several reviews of the draft, the Commission concluded that the Draft Penal Code was sufficiently complete, and, with slight modifications, fit to be acted upon, noted Justice Nariman in his 96-page judgement.
“The revised edition of the Penal Code was then forwarded to the Judges of the Supreme Court at Calcutta in 1851, and also to the Judges of the Sudder Court at Calcutta. “A Council was formed with Bethune (the Legislative member of the Legislative Council of India), Chief Justice of the Supreme Court at Calcutta, Justice Buller, Justice Colvile, Sir Barnes Peacock as members to review the Penal Code,” Justice Nariman wrote.
He noted that it was the Committee of Peacock which finally sent the draft equivalent of Section 377 for enactment, said Justice Nariman. After twenty-five years of revision, IPC entered into force on January 1, 1862. The IPC was the first codified criminal code in the British Empire. Justice Nariman, who wrote a separate concurring verdict, referred to Irish poet Oscar Wilde and said his trial paved the way to consider the law and practice relating to homosexual offences in Victorian era England.


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Section 377 based on law passed by Henry VIII in 1533.

Section 377 verdict: Supreme Court legalises homosexuality, partially strikes down Section 377 - Pragnya IAS Academy - News Analysis.

Section 377 verdict: Supreme Court legalises homosexuality, partially strikes down Section 377.

Section 377: The Supreme Court reversed its own 2013 decision restoring Section 377, a controversial British-era ban on consensual gay sex (homosexuality)

Diluting Section 377 by unanimous verdict, the Supreme Court on Thursday said LGBTQ community has the same fundamental rights as other citizens. This marks the end of a long legal battle supporting homosexuality.
Section 377 refers to ‘unnatural offences’. It states that whosoever 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 for a term which may extend to 10 years, and shall also be liable to pay a fine.
At least 32 individuals had filed petitions to scrap Section 377 of Indian Penal Code, including celebrities, IITians and LGBT activists. A five-judge Constitution Bench headed by Chief Justice Dipak Misra had earlier reserved its verdict on July 17 after hearing several petitioners, including gay rights activists.
While reserving judgment, the bench made it clear that no one should be under the impression that it will scrap Section 377 altogether as it will lead to anarchy and rise in crimes relating to forced unnatural acts. The Centre initially had sought adjournment for filing its response to the petitions, but later left to the wisdom of the court the issue of legality of the penal provision with regard to aspects of criminalising consensual unnatural sex between two consenting adults.
The Centre had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book.
The Supreme Court had in 2013 restored criminality of the sexual relationship between persons of the same sex, after the Delhi High Court’ had decriminalised it in 2009.
The five-judge bench on July 10 had made it clear that it was not going into the curative petitions and would adjudicate on fresh writ petitions in the matter. The writ petitions were opposed by the Apostolic Alliance of Churches, Utkal Christian Association and some other NGOs and individuals, including Suresh Kumar Kaushal, who had challenged the 2009 verdict of the high court in the apex court.
The issue of Section 377 raised by an NGO Naaz Foundation, which had in 2001 approached the Delhi High Court, seeking decriminalised sex between consenting adults of the same gender by holding the penal provision “illegal”. (Source: Livemint)


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Section 377 verdict: Supreme Court legalises homosexuality, partially strikes down Section 377.

Supreme Court to pronounce verdict on fate of Section 377 - Pragnya IAS Academy - News Analysis.

Supreme Court to pronounce verdict on fate of Section 377.

The judgment comes on a batch of petitions, including the lead one filed by hotelier Keshav Suri, arguing that the right to sexual orientation is meaningless without the right to choose a partner.

A five-judge Constitution Bench of the Supreme Court will pronounce on September 6 its judgment on the constitutionality of Section 377 of the Indian Penal Code, a colonial era provision which criminalises private consensual sexual acts between same-sex adults.
The Bench is led by Chief Justice of India Dipak Misra and comprises Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
There will be two opinions for the Constitution Bench. They will be authored by Chief Justice Misra and Justice Chandrachud.
The judgment would be first of the several major judgments, including Aadhaar, Sabarimala women entry ban, etc., waiting to be pronounced by various Constitution Benches led by Chief Justice Misra, who is retiring on October 2.
The Constitution Bench hearing in the Section 377 case began on July 10 with Justice Chandrachud orally observing that a person’s choice of a partner is a fundamental right to life, and a ‘partner’ includes same-sex partner.
The judgment comes on a batch of petitions, including the lead one filed by hotelier Keshav Suri, arguing that the right to sexual orientation is meaningless without the right to choose a partner. Section 377 criminalises a section of people for being a sexual minority.
The Constitution Bench judgment would decide whether the December 2013 verdict of the Supreme Court in the Suresh Koushal case, which had upheld Section 377 and dismissed the LGBT community as a negligible part of the population while virtually denying them the right of choice and sexual orientation, would prevail or not.
The initial days of the Constitution Bench hearings saw the Bench debating whether it should travel beyond the topic of sexual orientation and examine the wider concept of ‘’sexuality’ to include co-habitation, etc. But Chief Justice Misra had finally observed that the Bench should first decide the question of the constitutionality of Section 377.
The court had discussed whether what was perceived as against the “order of nature” in 1860 – the year the Indian Penal Code was framed – was still so in 2018. Justice Nariman had wondered whether LGBT itself was an “order of nature”.
Senior advocate Mukul Rohatgi, for Mr. Suri, had argued that “everything changes with the passage of time… Laws made 50 years can become invalid over time”. He had pointed out that Section 377 fell under the ‘Unnatural Offences’ chapter in the IPC. “What is unnatural? It can be between a man and man and also between a man and a woman. Sex done even between a man and woman, but not in the “conventional” way, also becomes unnatural under 377,” Mr. Rohatgi had interpreted.
The court heard arguments about how history has changed its view on homosexuality from pathological prejudice to a “normal and benign variation of human sexuality”.
Justice Malhotra, the woman judge on the Bench, had reacted that homosexuality was not confined to humans but extended to the animal kingdom.
In the hearing, the government chose to remain neutral on the legality of Section 377, leaving the decision entirely to the wisdom of the Supreme Court.
However, the government’s neutrality came with a rider that the court should clarify that the freedom to choose a partner does not extend to perversions like incest.
“My choice of partner should not be my sister... That is prohibited under the Hindu marriage law. Allowing the choice of a partner should not extend to incest... sado-masochism...,” Additional Solicitor-General Tushar Mehta had voiced the government’s apprehensions to the Constitution Bench.
To this, Justice Chandrachud had replied that the Bench is not sitting to adjudicate over any “kinky notions” of sexual orientation. (Source: The Hindu)


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Supreme Court to pronounce verdict on fate of Section 377.

What is Section 377, and why does it matter? - Pragnya IAS Academy - News Analysis.

What is Section 377, and why does it matter?.

What is it?
Section 377 of the Indian Penal Code criminalises consensual private sexual acts between adults. It came into force in 1862. Lawyers have argued that the notorious Criminal Tribes Act, 1871, which branded a number of marginalised population groups like transgenders as “innately criminal” before it was repealed, drew inspiration from Section 377. Though the 172nd report of the Law Commission of India recommended the deletion of Section 377, no action was taken. 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.”

In 2009, the Delhi High Court read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors. In December 2013, a two-judge Bench of the Supreme Court, on appeals filed by private parties, set aside the High Court’s judgment. It upheld the criminalisation of gay sex while virtually denying the LGBTQ community the right to sexuality, sexual orientation and choice of partner. In July 2018, a Constitution Bench, led by Chief Justice Dipak Misra, re-opened the entire issue, saying a section of people could not live in fear of the law which atrophied their rights to choice, privacy and dignity.
How did it come about?
Arguing for 20 IITians against Section 377, advocate Menaka Guruswamy told the Supreme Court that the penal provision reduced the LGBTQ community to the status of “unconvicted felons.” Hopes of the community to lead a normal life got dashed when the Supreme Court overturned the Delhi High Court’s verdict in December 2013. But their decades-long struggle for dignity took a significant turn for the better with the progressive NALSA judgment delivered by a Supreme Court Bench, led by Justice K.S. Radhakrishnan. This verdict recognised transgender people as ‘third gender,’ possessing rights, including marriage, adoption, divorce, succession and inheritance. More importantly, it condemned discrimination on the grounds of sex as a violation of the fundamental right to equality under the Constitution.
In August 2017, the fight against Section 377 got a second major boost when a nine-judge Bench of the court, led by the then Chief Justice of India J.S. Khehar, upheld the right to privacy as a fundamental right intrinsic to life and liberty. This Bench ripped apart the December, 2013 judgment. The nine-judge Bench, in its main opinion authored by Justice D.Y. Chandrachud, underlined the impact of Section 377, saying it “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.” The two judgments signalled that the court was ready to change its opinion on Section 377. They became the pillars on which the petitioners based their case before the Constitution Bench.
Why does it matter?
Section 377 criminalises a section of people for being a sexual minority. A cross-section of the people has approached the Supreme Court against the penal provision. They are not just seeking protection as sexual minorities, but recognition of characteristics inherent in all human beings. They argue that the right to sexuality, sexual autonomy and freedom to choose a sexual partner form the cornerstone of human dignity. Section 377 has a “chilling effect” on the right of equality, liberty, life, dignity and non-discrimination on the ground of sex.
What next?
The pertinent question before the court is, what is the ‘order of nature’ meant by Section 377 in its text. Once the Constitution Bench decides that homosexuality is also an order of nature and upholds the fundamental right to sexuality, sexual orientation and choice of same-sex partners, the doors are opened for individuals to approach the court in future on the larger issues of legalising same-sex marriages, inheritance, adoption, and reservation in employment.(Source: The Hindu)


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What is Section 377, and why does it matter?.

Centre leaves it to Supreme Court to decide on Section 377 - Pragnya IAS Academy - News Analysis.

Centre leaves it to Supreme Court to decide on Section 377.

We leave to the wisdom of the court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults, says ASG Tushar Mehta.

The government on Wednesday told the Supreme Court that it would leave it to the wisdom of its judges to decide on the constitutional validity of Section 377 on the issue of criminalising homosexuality. A five-judge constitution bench, headed by Chief Justice Dipak Misra, which is hearing a batch of petitions challenging the Supreme Court’s 2013 verdict that had re-criminalised consensual sex between two consenting adults of the same gender, was told by the Centre that it has no objection with the court dealing with the validity of this penal provision.
“We leave to the wisdom of the court to deal with the validity of Section 377 so far as it relates to consensual sexual acts between two adults,” additional solicitor general Tushar Mehta, representing the centre, told the bench at the outset of the crucial hearing which entered the second day.
The bench, comprising justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, said it had already made it clear on Tuesday that only the constitutional validity of Section 377 will be dealt with by it.
The law officer said that if the right to chose sexual partner is declared a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing to marriages.
“We are not considering all these issues. One cannot judge these issues in vacuum,” the bench said. Section 377 refers to “unnatural offences” and 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 pay a fine.
The Supreme Court had on Tuesday commenced the crucial hearing on a clutch of petitions seeking decriminalisation of consensual sex between two adults of the same gender. The apex court had in 2013 restored sexual relationship between persons of the same sex as a criminal offence by setting aside the 2009 Delhi high court judgement that had held as unconstitutional Section 377 of the Indian Penal Code, which makes such actions between two consenting adults of same sex as a penal offence.


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Centre leaves it to Supreme Court to decide on Section 377.