Section 377 of the Indian Penal Code

• The Supreme Court (SC) reserved its verdict on a controversial and archaic provision in the Indian Penal Code (IPC) that makes gay sex a punishable offence.
• The SC asked all the counsel who argued for and against 377 to submit written submissions.

About Section 377:

• Section 377 of the Indian Penal Code criminalises consensual private sexual acts between adults.
• 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.”

Historical background:

• 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. I
• n 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.

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.

By: Vishal