The upsurge of article 377: Understanding the role of the judiciary in decriminalising article 377

Brief description about section 377 of IPC, why it is the trending topic for debate.

Recently the Delhi High Court denied any legal sanction to same-sex marriage in the country. The bench of the High Court further mentions that the decriminalisation of Section  377 of IPC, does not automatically constitute and give homosexual couples a basic constitutional right to marry.

The Delhi Court in its statement mentioned that there is a “Legitimate Interest of the State” in restricting the marriage acknowledgement of people with same-sex marriage. Allowing same-sex marriage will cause damage to the stability and balance of personal laws in India. It further said that the foundation of marriage has “sanctity”. The same-sex couples as partners or living together is completely incomparable to the concept of the “Indian Family Unit”. In our country marriage is inherently dependent upon ages-old customs. It is considered to be a bond between a biological man and a biological woman. Despite the statutory validation of marriage between a man and a female.

The decision made by the Delhi High Court received much criticism and led to several responses. People are divided into two troops and they criticized the hypocrisy of the government with citations to ancient Hindu texts, which is used to validate the judgements. There are a plethora of posts all over social media concerning the decision taken.

Let’s have a look at a few of them.

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The Background of article 377

The Indian Penal Code (IPC) Section 377 is an act that criminalizes homosexual activities. It was introduced in 1861, by the British Government. The act further states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life”.

In 2009, the High Court of Delhi described Section 377 as a violation of the fundamental rights that are ensured to every citizen by the Constitution of India. Petitioners challenged this verdict and they moved to the Supreme Court of India to seek redressal.

In 2013, the Supreme Court of India quashed the ruling of the Delhi High Court and strengthened the criminalisation of homosexuality. It further states that the job of the parliament is to scrap such laws. The LGBTQ people in India criticized the Supreme Court’s decision massively perceived it to be a backlog for human rights.

In its landmark judgement, the Supreme Court of India on 6 September 2018, decriminalized IPC Section 377 and allowed homosexual sex amongst the consenting adults. The Supreme Court upheld that consensual homosexual sex is not a crime. The sexual preference of people is natural and there cannot be anything holding back their choice.

Quoting the Navtej Singh Johar case verdict,  The Supreme Court of India granted the freedom and liberty to same-sex partners to carry on live a dignified personal life. Though, the court only offers a “Basic Right to Companionship” provided that the companionship is mutual and free from any type of manipulation, force, coercion and violation of fundamental rights.

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