Section 377 of Indian Penal Code 1860

Cases related to LGBTQIA

Naz Foundation v. Govt. Of NCT of Delhi
Citation– 2010 Cr LJ 94 (Del); 2009 SCC Online Del 1762
Bench– Division Bench of Delhi High Court
Facts– In 2001, Naz Foundation Trust, an NGO, stated that Section 377 of IPC is unconstitutional as it violated the fundamental rights guaranteed under Article- 14, 15, 19 and 21 of the Constitution of India. The term “unnatural offences” in Section 377 of IPC has withhold the choice and freedom of certain minorities and groups.
Judgment– The Delhi High Court held that Section 377 of IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 14, 15 and 21 of the Constitution. The provisions of Section 377 will continue to govern non-consensual penile, penile non-vaginal sex and non-vaginal sex involving minors. By ‘adult’ means everyone who is 18 year of age and above. A person below 18 tears would be presumed not to be able to consent to a sexual act. This clarification will hold till Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which removes a great deal of confusion. Section 377 denies a person’s dignity and criminalizes his or her coerce identity solely on account of his or her sexuality. The Section denies a gay person right to full personhood which is implicit in the notion of life under Article 21. Thus, Section 377 of IPC is violative of Article 21 of the Constitution.
This judgment will not result in re-opening of criminal cases involving Section 377 that have already attained finality. This decision went in appeal before the Supreme Court in Suresh Kumar Koushal and another v. Naz Foundation and others.

Suresh Kumar Koushal and another v. Naz Foundation and others
Citation– 2014 Cr LJ 784 (SC); (2014) 1 SCC 1
Bench– Division Bench of Supreme Court
Facts– The judgment of the Delhi High Court went in appeal before the Supreme Court.
Judgment – The Supreme Court rejected the decision of the Delhi High Court and held that Section 377 of IPC is constitutional. The Court said that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. The court further stated that unless a clear constitutional violation is proved Supreme Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.

National Legal Services Authority v. Union of India ( Transgender Case)
Citation– AIR 2014 SC 1863
Bench– Division Bench
Facts– For a ling time the transgender community faced a lot of disgrace and humiliation. They are not allowed to get medical, educational and such other facilities. They are also harassed by people. This leads to the violation on fundamental rights and other International Human Rights. Thus, it leads to a filing of petition. The laws relation to marriage, succession, inheritance, adoption, taxation all are governed by whether you are male or female. This leads the discrimination for third genders in their life. So, the Public Interest Litigation was filed by National Legal Services Authority and others.
Judgment– The Supreme Court held that article 14 does not restrict the word ‘person’ on its application only to male and female and transgender persons who are neither male or female fall within the expression ‘person’. They are entitled to legal protection of laws in all spheres of state activity including employment, healthcare, education as
well as equal civil citizenship rights as enjoyed by any other citizen of this country. The expression ‘sex’ under Articles 15 and 16 therefore includes discrimination on the ground of gender identity the expression “sex” is not limited to biological sex of male or female but intended include people who consider themselves to be neither male or
female. They are also entitled to reservation in the matter of appointment under Article 16 (4).

Navtej Singh Johar v. Union of India (Landmark Judgment)
Citation– (2018) 10 SCC 1
Bench– 5- judges bench (Constitutional Bench)
Facts– Several Curative Petitions were filed challenging the judgment of Suresh Kumar Koushal abd another v. Naz Foundation and others (supra) given by Supreme Court. While these curative petitions were pending, 5 persons from the LGBT community filed a fresh petition before the Supreme Court for struck down Section 377 of IPC insofar as it criminalizes sex between same sex individuals.
Judgment– The Supreme Court reversed the decision given by division bench in Suresh Kumar Koushal and another v. Naz Foundation and others (supra) and held that Section 376 of IPC is unconstitutional insofar as it criminalizes the gay sex between consenting adults. The Court partially struck down Section 377 of IPC. The Court upheld the provision of Section 377 which criminalises the non consensual acts performed on animals. The Court stated that Section 377 of IPC discriminate against individuals on the basis of gender identity in violation of Articles 14 and 15 of the Constitution. The Section also violates the right to life and dignity of individuals under Article 21 of the Constitution. Consensual sexual relationship between two adults homosexual, heterosexuals or lesbians is no more an offence under Section 377 of Indian Penal Code.

Akanksha Gupta

Currently pursuing LLM from University of Rajasthan. one can reach out her on aklawyerslawhub@gmail.com

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