ppt

1. THE ANNULMENT OF
SECTION 377
BY KHYATI AHUJA, I-B

2. Section 377 of the Indian Penal Code(1860) states that:
377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine.
SECTION 377
What does Section 377 of the Indian Penal Code state?

3. TIMELINE OF SECTION 377
The trajectory of two nations
Introduction of Buggery Act, 1533.
(served as a model for Section 377)
Offences against the Person Act 1861
(another act that served as an inspiration behind Section 377)
Section 377-
● drafted by Thomas Macaulay around 1838.
● only brought into effect in 1860 in light of the Sepoy Mutiny of 1857.
● Continued to be used in the post-British era.
Sexual Offences Act 1967
(decriminalised homosexuality in UK)

4. ATTEMPTS TO ANNULMENT
(petitions to HC and SC)
● AIDS Bhedbhav Virodhi Andolan vs Union of India
● Naz Foundation v. Govt. of NCT of Delhi
● The 2009 Delhi HC Judgement on Naz Foundation v. Govt.
of NCT of Delhi
● Suresh Kumar Koushal and another versus NAZ Foundation
and Others
● Shashi Tharoor’s Attempts in the Parliament
● Navtej Singh Johar vs Union Of India

5. Story for illustration purposes only
ATTEMPT#1
AIDS Bhedbhav Virodhi Andolan vs Union of India
● First petition against Section 377
● Filed in Delhi High Court in May 1994
● Result of the incident that occured in Tihar jail regarding refusal to provide condoms for inmates on
grounds that it would encourage homosexuality and that was against Section 377.
● ABVA filed a writ petition in Delhi HC in response asking
to declare Section 377 as unconstitutional and to provide
free condoms in jails.
● Fight came to an end in 2001

6. ATTEMPT#2
Naz Foundation v. Govt. of NCT of Delhi
● PIL filed by Naz foundation in December 2001 in Delhi HC.
● Challenged the constitutionality of Section 377.
● Response from Indian government in 2003-
Section 377 was in interest of public safety and annulment would
lead to delinquent behaviour.
“Objectively speaking, there is no such tolerance to the practice of
homosexuality/lesbianism in Indian society”
● Delhi HC took up matter in September 2004: two-judge bench of Chief Justice B. C.
Patel and Justice Badar Durrez Ahmed.
● Petition was dismissed on the grounds-”no cause of action” as there was no
prosecution pending against the Naz Foundation.

7. 2006- The Naz Foundation appealed the dismissal to the Supreme Court in 2006, which
instructed the Delhi High Court to reconsider the case.
● The 2006 petition was limited to the question of whether the High Court could dismiss the
petition on the grounds that there was no cause of action.
● The Supreme Court upheld that the petition dealt with the issue that was being debated all over
the world and hence it is in public interest and does not deal with an academic question(as
stated earlier by the HC)
● Hence, the case was reinstated in HC.
● A series of affidavits and interventions were filed both in favour and against the Naz Foundation
PIL.
1. NACO(National AIDS Control
Organisation): enforcement of 377 is
a hindrance to HIV prevention efforts.
Favour
1. B.P. Singhal(then Rajya Sabha MP):
filed an intervention homosexuality
was against Indian culture and that
the law should remain unchanged.
Against

8. DECRIMINALISATION#1
The 2009 Delhi HC Judgement
In a Landmark judgement given on 2 July 2009, by the two-judge bench of Chief Justice Ajit
Prakash Shah Justice S. Muralidhar:
● The court declared that Section 377 criminalised consensual sexual acts of adults in
private and thus it is voilative of Articles 21, 14 and 15 of the Indian Constitution.
● The court also brought in the concept of ‘constitutional morality’.
● This judgement effectively decriminalised homosexuality in India. ‘

9. Suresh Kumar Koushal and another versus NAZ Foundation and Others
● Filing the first Special Leave Petition (SLP) in the Supreme Court in 2009, Suresh Kumar
Koushal challenged the Delhi High Court’s decision on Section 377.
● The Supreme Court reversed the judgment of the Delhi High Court.
● Held that Section 377 does not violate the Constitution and is therefore valid.
● The court said that the section does not discriminate against or target homosexual community
as a class, as it also punishes heterosexual acts which fall under the scope of this section.
● The court went on to conclude that the responsibility to change laws lies with the Parliament
and it should be left to the Parliament to consider deleting or changing the law.
Add.- Right to Privacy:Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. 2017
● SC declared right to privacy as a fundamental right under Article 21 of the Indian Constitution.
● While giving the judgement, the SC also commented on “sexual orientation being an essential attribute
of privacy.”
● SC’s statement would later prove to strengthen the case against Section 377.

10. ● In 2015 as well as 2016, Shashi Tharoor introduced his own Private Member Bill in an attempt
to annul Section 377, however, both his bills got voted out in the Lok Sabha, his 2nd bill
getting only 14 votes.
● In another attempt, he tried to annul the section through an amendment to the government’s
bill to repeal 104 old laws.
● In 2018, moved an amendment, which essentially qualified the criminalisation part of Section
377 to ‘non-consensual sex’.
Instead of the words “Penetration is sufficient to constitute”, Tharoor proposed the words:
“Non-consensual penetration shall constitute.”
The amendment was, however, not taken up for debate.
● Despite these attempts, he remained unsuccessful as he was unable to garner support from
not only the ruling alliance- National Democratic Alliance (NDA), but also from his own party-
Congress, as well as others
Shashi Tharoor’s Attempts in the Parliament

11. Final Attempt
Navtej Singh Johar vs Union Of India
● Following the 2013 judgement that re-criminalised homosexuality, many members of the
LGBTQ+ community felt a sense of betrayal and fear.
● Navtej Singh Johar, a well renowned Bharatnatyam dancer, filed a writ petition in the
Supreme Court challenging Section 377 in 2016.
● During the span of this case, the five-judge bench of Chief Justice Dipak Misra, Justice A.M.
Khanwilkar, Justice Rohiton Fali Nariman, Justice Indu Malhotra and Justice D.Y. Chandrachud
looking at the case in a rather all-inclusive way.
● The case referred to previous judgements and judgements of cases that dealt with rights
possibly violated by the section.
● The case also dealt with “Constitutional morality”, International perspective(including USA,
South Africa and UK) and contemplated the effects of the section on individual expression of
identity and human dignity of those affected by the section, as well the effect on society at-
large.

12. ● The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. was overruled.
● Consensual sexual activity between adults was no longer criminal, regardless of sexual
orientation and gender identity.
● However, bestiality, non-consensual sexual activity and sex with minors continues to be under
the ambit of Section 377.
VERDICT (06/09/2018)

13. THANK YOU.