Article – 377

Posted by priya saini
March 4, 2018

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Evolution of article 377 has been started as a part of Indian Penal Code . In Indian Penal Code in 1860 a provision has been added by lord Macaulay that according to british colonial states if same sex marriage or same sex attraction then it will be regarded as unnatural offences. So Indian Penal Code defines the Article 377 as unnatural Offence. The introduction of the section was homosexuality or acts against the order of nature because it has not been considerbed as normal so it is regarded as illegal and in bible it is condemned there.

Now the question rises what is homosexuality ? Homosexuality is defined as same sex attraction meaning the physical , the emotional , the psychological these three defined as homosexuality . The way you are normally attracted to a person as in you are attracted towards your friend or the opposite sex it can be regarded as normal but any kind of attraction that is more than normal where you are physically attracted towards the same sex it is homosexual.

Here we come to what is LGBT ? Lesbian Gay Bisexual Transgender , Gender identity based cultures needs to be identified when there is a female to female or male to male problem. LGBT is intended to emphasize or diversity of sexuality and gender identity based cultures. LGBT targets those who are non heterosexual. A heterosexual person is attracted to opposite sex people. When you think a married couple or parents its usually a man and women it is heterosexual couple.

According to section 377 whoever voluntarialy widout any force has been doing carnal intercourse against the order of nature with any man , women or animal shall be punished. Penetration is sufficient to constitute the carnal intercourse necessary to offence described in this section . Maximum punishment is imprisonment for life .Its not like that it is remembered today because this section has been raised many times because there are many agitation against LGBT community in this the people are also getting harassed. Because of this basic human rights get violated harassment and violence also. Its a normal couple has fundamental rights so LGBT people also have the same. This has led to protests demanding the repeal of the section according to LGBT community or supporters of this Act.

The first issue includes voluntary which means without any force as punishable under section 377 . Therefore the section does not make any difference between male adult seducers , male who commit rape on other male and two males having consensual sex. If all homosexual acts has been declared as criminal whether it is consensual or non consensual is nothing but considerbing all homo sexuals as sexual pevert thus demeaning their dignity.

There are arguments which were raised on this issue that are critics raises a question that a state should allow consenting adults to make their own sexual choices. Everybody has the right to control their sexuality and bodily integrity. If a person cannot enjoy his privacy then his Right to Life in article 21 under constitution has been demeaning . It means critics says that if LGBT community should be stopped then it will go against Right to Life according to article 21 in fundamental rights. Britishers has made our country law IPC it shall be understood but after Independence we should also see that English law has decriminalise the sexual offence act 1967 that is accepting same sex marriages and LGBT community so we should do not have any offences against it and Indian law still going on outdated method so our country should modify with International experiences.

Second issue which has been raised is that section 377 has been not defined properly . The term carnal intercourse against the order of nature has not been defined in IPC. This term will be understood by people like that it is only penetration against the order of nature . If the people are staying together they cannot be regarded as sexual intercourse till the penetration has not been done . It has been subjected to various judicial interpretations . Penetration is of three types first is vaginal sex type which is also known as intercourse and anal sex these two includes penetration and third one is oral sex that does not include penetration. If you are doing oral sex so you will not try this in article 377 . Initially it covers oral sex but gradually its ambit went on to increase to include oral sex because its a judicial interpretations . It includes any form of non vaginal penile penetration because of same sex . The arguments which were raised are the spirit of this section is to punish those people who do intercourse with the same sex individual so that they could check on pervert actions . So why pervert actions are restricted to same sex it should also be restricted to the opposite sex because there are many cases which are registering day by day related to it but even heterosexual couples are also involved in anal and oral sex which comes under the defination of this section. So the heterosexual couples can also face the criminal proceedings . Therefore the section is just not directed at homosexuals .

Third issue is that article 14 ensures a right to equality as well as equal protection of law because if one law has been made so how can you remove homosexuals from it . This action is not clearly defined vagueness and uncertainity. Supreme court also held that a statute is void for ambiguity if its prohibitions are not clearly defined. Such vagueness will lead to arbitrary applications and supreme court has clearly said that in its judgements that arbitraries ia always anti thesis of equality . The argument includes section 377 creates unreasonable classification and distinction between persons who indulge in carnal intercourse in the ordinary course of nature and persons who indulge in carnal intercourse against the order of nature .

Fourth issue is article 15 (1) of Indian Constitution the state cannot discriminate between any citizen on the basis of colour religion caste gender and place of birth or any of them. The argument is that the term sex has a wider meaning and apart from biological sex it also includes sexual orientation as well . Effect of section 377 is disproportionately impacts homosexuals on the basis of their sexual orientation thus it leads to violation of article 15 .

Another issue is article 21 which is right to life is fundamental to existence. Supreme court has interpret that word life does not mean mere animal existence but a life where an individual could exercise his liberty to live a dignified life . The arguments which were raised are privacy , health and a dignified life are basic essentials of person’s life . An individual sexual orientation is obstructed his right to privacy thereby affecting his right to dignified life . Thus it criminalises of section 377 has also impeded access to health services of LGBT community . Above all the section violates the basic features of constitution that is justice liberty and equality .

From all this one has to understand that the fight cannot be achieved only through legal amendments . It should be accompained by awareness campaigns to educate parents , teachers , friends . To adopt a healthy and supportive attitude towards homosexuals .

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