FREEDOM OF CHOICE (Section 377)

Evolution of Section 377

·        Evolution of sec 377 stated as the part of IPC(Indian Penal Code). It defines  section 377 as an “UNNATURAL OFFENCES”

·        Lord Macaulay in 1860 introduced it as a part of IPC. According to it same sex marriage/attraction will be considered as UNNATURAL OFFENCES

·        One of the ground of introduction of this section was homosexuality or acts against the order of nature are condemned by the Bible

What is homosexuality?

·        HOMO + SEXUALITY=>   ( Homo= Same / Sexuality=Attraction)

·        It is defined as same sex attraction i.e Phyical, Emotional, Psycological attraction toward the person of same sex. (Exception Father-son, mother- daughter, brother- brother etc) It is to be noted that homosexuality has not been define anywhere in Law therefore there are lots of grey areas and confusion but its has been said that the homosexuality act will constitute an unnatural offence

What is LGBT?

·        LGBT/GLBT stand for Lesbian, Gay, Bisexual, and Transgender

·        LGBT is intended to emphasize the diversity of Sexual and gender identity-based culture

·        It may be used to refer to anyone who is non-heterosexual

Why it is in news?

On the account of violation of basic Human rights, Harassment, Violence among the LGBT community this led to protest demanding the repeal of the section. And we should know that

 ISSUE RELATED TO IT…..

ISSUE 1	ISSUE 2	ISSUE 3
·        The section 377 mentions even voluntary act as punishable (but the word voluntary is undefined) ·        Therefore section 377 dose not make any difference between: Ø Male adult seducers Ø  Male who commit rape with other male Ø Two male having a consensual sex Thus decleration of homosexual act criminal, whether consensual or non consensual, is nothing but considering all homosexuals as sexual pererts, thus demeaning their dignity. The section dose not take into account the sexual preference showing that there is absance of It is the violation of Article 21 which talks about “Right to dignified life with personal liberty ” Hencs if a persons cannot enjoy his privacy then it hampers his “Right to live dignified life” Everyone has the right to control their sexuality and bodily integrity So the state should allow consenting adults to make their own sexual choices As the country that promoted the section 377 in 1860s has already enacted “Sexual Offences act 1967”  which DECRIMINALISED homosexuality between consenting adults Whereas Indian Law continues with its previous laws	·        Section 377 lacks in precise defination ·        The term “carnal intercourse(penetration) against the against the order of nature” not defined in IPC ·        The only criterion being ‘penetration’ against order of nature ·        Initially it covered only the anal sex but gradually its ambit was increased to oral sex and later it included all form of non-vaginal penile penetration Hence sprit of the section is to punish those individual who have intercourse with the individual of same sex so that the pervert action could be keep in check	·        Talks about the violation of constitutional rights of LGBT community ARTICLE-14 ·        It ensures right to equality and equal protection of law ARTICLE- 15(1) ·        It states that “state shall not discriminate against any citizen on ground only of Religion, Race, Caste, SEX(Gender), Place of birth” or any of them In present senario the term ‘Sex‘ has wider meaning and apart from biological sex it includes ‘sexual orientation’ as well And section 377 disproportionately impacts homosexuality on the basis of their sexual orientation thus it violates A-15 ARTICLE-21 ·        Right to life is most fundamental to existance Bandhua mukti morcha v union of india case 1997 ·        Sc held that “there are minimum human requirements which exist in order to enable a person to live with human dignity and no state has right to take away action which will deprive a person of the enjoyment of this basic essentials” So as per the interpretation ·        Privacy ·        Health ·        Dignified life ·        Freedom of choice Is coming under A-21 Further criminilization of s-377 has also impeded access to health service of LGBT community As same same sex relationship (specially male)HIV instance has oftenly been seen and they don’t have access to the health facilities only because the belongs to LGBT community

ARTICLE-21 and Section 377

ARTICLE 21 ·        Right to life and Personal Liberty ·

 In past the society was different and at that time

no one accepted the practice of homosexuality

and as per bible it was taken as an offence

against the natural order.

·        During the making of the constitution of India

the makers dint foused much on the issue of

section 377, and made the constitution based on

the demand of the society of that period so we

cannot say that they were Infaliable or perfect

i.e. the constitution they had made is not infaliabe

but can be evolved time to time as per the requirement of the society