DECRIMINALIZATION OF SECTION 377 OF IPC

By Devm Blogs November 22, 2020

INTRODUCTION

Gender – what does this gender word mean? Generally, in every definition or dictionary, we will find gender includes male and female. In IPC also in section 8 Gender is defined but it is written that he is denoted as male or female.[1] Is this quality? Equality is a term that says each person is equal in the eye of law and they all are having the right to be protected in every aspect. But in India now also a reorganization of identity is very difficult. But after NALSA Judgment they are recognized as the third gender. In India, they are generally called HIJRA or kinnar. Why this type of discrimination in every field because of gender as all humans are the creation of god. They are also part of this world and they are not discriminated against in the eye of god then why we humans discriminate in terms of gender, caste, color, or any reason. There are lots of questions but in this almost it has been many years but the evolution has been done. They are facing challenges, but they are evolving too.

HISTORY OF DECRIMINALIZATION OF SECTION 377

Firstly in 1991, a landmark report was published by AIDS Bhedhav Virodhi Andolan. The first in the history of India report was published for the identity and recognization. The report is called LESS THAN GAY – A CITIZEN [2].
After a decade in 2001 NAZ FOUNDATION [3], an NGO fills a case in Delhi. This case is also for the decriminalization of homosexuality. Gender is gender there should be a wider interpretation of gender like there are more than male and female. Homosexuals should also include in gender. In this case, it was said sexual intercourse between two homosexual humans is legal if it is done with consent. As there are two types of things which were mentioned in judgment –
Biological sex
Sexual orientation

As Naz foundation puts a PIL for the fundamental rights of LGBTQ. By this judgment, it was clear if sexual intercourse was done in consent then it is not an illegal offense. As the right to privacy is covered by Article 21[4] which says the protection of life and personal liberty.

Article 14 also guarantees equality before the law and equal protection of law to each citizen of the country, and transgender is also a part of this country only.

And by this case the decriminalization of homosexuality.[5]

After the NAZ foundation judgment in 2013, the whole scenario changed by Suresh Kumar Khosla [6]case who challenged the NAZ foundation judgment. In this case, it was said decriminalization of homosexuality is only done by parliament not the court. And it was said homosexuality is illegal and again it was criminalized.
Then in 2014 NALSA judgment came which again changes the story and again it was decriminalized. And this is a very landmark case as by this case only there is a word includes called THIRD GENDER and identification of gender was done. And these fundamental rights of transgender are to be protected as the Constitution of India guarantees the right to life with personal liberty[7].

In this judgment, it was said by J. K.S.RADHA KRISHNAN THAT “Seldom, our society realizes or cares to realize the trauma, agony, and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex”.[8]

Again in 2019 and this judgment was landmark NAVTEJ SINGH JOHAR VS. UOI[9] in this case section 377 of IPC was challenged as section 377 says sexual intercourse with the same sex is illegal and this thing violates the fundamental right of a citizen of this country as article 14,19 and 21 is violated as this guarantee equality, no discrimination and freedom to live with own choice. And now with this judgment 377 is decriminalized.

Section 377 of IPC

Before judgment, it says unnatural Offences – whoever without the consent of woman or man or animal intercourse will be punishable. And also against the order of nature, this can be interpreted as same-sex intercourse is illegal.

After judgment now section 377 is declared unconstitutional and says sexual conduct with consent with the same sex is legal in private and it is now no more a criminal act.

CONCLUSION

Transgender is also human then why they are discriminated against? As our constitution also gives equal protection to citizens and each person is equal. By the Navtej Singh case, Hon’ble SC also decriminalized the section which discriminates between citizens. As more awareness and knowledge need to be spread so that they can also feel the same and equal. As the mentality that they are not equal destroys society. Transgender who faces so many challenges in each field like education, are disrespectful and ignored. They almost face issues in every aspect economically, socially, or opportunities. They need to be treated equally because they are discriminated against they do not get proper education and because of that their economic condition is worse. Opportunities are also not given to them just because of their gender that is fully not accepted .every time they feel insecure why just because they are transgender. Now there is an hour to change, change in mindset, change in society, as some changes are good and for the betterment and development they are needed. As respect is most important and each person should get it, not just because of color or gender anyone disrespected. Transgender are as equal to other human beings as all the human are made by the god. So there is no mistake of anyone because of their gender or color. It is important that we need to understand it. And spreads more and more awareness and knowledge.

Author(s) name: Parneet Kaur Chawla (ITM University, Raipur)

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Reference(s):

[1] Section 8 of IPC

https://indiankanoon.org/doc/1738671/

[2] http://www.sacw.net/article10497.html

India: 1991 citizens report on the status of homosexuality

[3] https://cjp.org.in/wp-content/uploads/2017/12/Case-Summary-Naz-Foundation-v.-Government-of-NCT-of-Delhi-and-Others.pdf.

[4] Indian constitution

[5] https://cjp.org.in/wp-content/uploads/2017/12/Case-Summary-Naz-Foundation-v.-Government-of-NCT-of-Delhi-and-Others.pdf

[6] https://www.thehindu.com/features/metroplus/society/it-is-like-reversing-the-motion-of-the-earth/article5483306.ece

[7] Article 21 of the Indian constitution