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Section 377 of the Indian Penal Code, 1860

Section 377: Relationship Of Law With Justice And Morality

Law refers to the system of rules and regulations that are framed in order to guide the actions of the citizens. Justice is the quality of being fair and reasonable. Morality is a certain code of conduct that is established by the people about good and bad behaviour. Society is a group of people who share social relations and have similar ideas. These concepts may seem vague and disparate but, they are tightly interlinked with each other.

Law itself is made by the people or the society keeping in mind the principles of both justice and morality. Without justice, there would be no order and laws would be framed inequitably that are beneficial only to those in power. Lack of morality in the society would lead to complete and utter nuisance in the administration of the people. This shows that the above stated notions cannot exist without each other.

Per contra, there is often a dichotomy between reality and theory. Law, justice and morality are three concepts that are of crucial importance to the society but, they are often hard to follow hand in hand. This postulation can be further elaborated using the example of recent amendment in section 377 of the Indian Penal Code.

Section 377 of the IPC states that anyone who has voluntary carnal intercourse against the order of nature, shall be punished with lifetime imprisonment or with an imprisonment which may extend up to ten years. This act was introduced in during the British rule in 1861 and criminalized homosexuality under unnatural offences.

However, in a landmark judgement, Supreme Court amended section 377 of the Indian Penal Code on September 6, 2018 by decriminalizing consensual intercourse between same sex partners. It was ruled that homosexuality is not a crime, as well as an individual�s sexual orientation and preference does not violate the Order of nature.

Through this paper I aim to peruse and analyze the compliance of the Supreme Court�s verdict on section 377 with the principles of law, justice and morality, along with scrutinizing the shift in the Supreme Court�s stand on the words Against the order of nature with regard to section 377of the Indian Penal Code.

Timeline Of The Battle Against Section 377

Section 377 of the IPC is an act which criminalized homosexuality, certain acts between heterosexuals and sexual activities between humans and animals. The part of this act concerning criminalizing of homosexuality is highly regressive and counter-revolutionary in nature. It is highly orthodox and offensive because it marginalizes a sexual minority, along with equating homosexuality with sexual perversity.

Furthermore, it also violates the fundamental right to life and liberty and the fundamental right to equality available to all the citizens of the country.
This act was drafted by Thomas Macaulay around 1838 but, was brought into effect in 1860 under the pressure of the Sepoy Mutiny 1857. This section was modelled on the Britishlaw called Buggery Act 1533. This goes to show that despite more than seven decades of independence, we still have notlet go of the colonial hangover.

The battle against section 377 in India began over 20 years ago when this act was first brough up in the Delhi high court in December 2001. A public interest litigation (PIL) was filed against this act by Naz Foundation, a sexual heath NGO working with gay men challenging the constitutionality of section 377 and petitioning for the legalization of homosexuality.

The high court dismissed the case on the grounds that purely academic issues cannot be examined by the court and that there is no legitimate cause of action. A review petition filed by Naz Foundation is dismissed a few months after.

Later in February 2006, Naz foundation files a special leave petition for the case and the Supreme Court reinstates it in Delhi high court, giving the reason that it is a matter of public interest. A few months later the Ministry of Home Affairs files an affidavit against the decriminalization of homosexuality.

In a landmark judgement, in July 2009, a Delhi high court bench consisting of chief justice Ajit Prakash Shah and justice S Muralidhar decide to strike down section 377 stating that it violated the fundamental rights to life, liberty and equalityupheld in the Indian Constitution. However, there were several critics of this judgement including Suresh Kumar Koushal, a Delhi-based astrologer who challenged this verdict of the Delhi high court in the Supreme Court.

In December 2013, the Supreme Court overturned this decision of the Delhi high court on the basis that section 377 of the IPC does not suffer from the vice unconstitutionalityand the declaration made by the division bench of the high court is legally unsustainable. Needless to say, the LGBTQIA+ community suffered a major blow from the Supreme Court�s judgement because their struggle to legalize homosexuality had turned to ashes.

Later in June 2016, Navtej Singh Johar, the award-winning Bharatanatyam dancer, filed a writ petition in the Supreme Court opposing section 377 along with four other high-profile Indians, including chef Ritu Dalmia and hotelier Aman Nathon the basis that it violated the constitutional rights to privacy, freedom of speech, liberty, human dignity and protection from discrimination.

Then in August 2017, a nine-judge supreme court bench hearing petitions unanimously against Aadhaar, India's biometric project, rules that privacy is a fundamental right. In its judgment, the court also says, Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual, raising the hopes of those campaigning against section 377.

In July 2018, the five- judge bench of the Supreme Court, including Chief Justice Dipak Misra, began hearing the petitions filed by Johar and many others against Section 377. Though defenders of the law contend that the proliferation of sexually transmitted diseases and the disintegration of India's social structure are grounds for preservation, several justices make supportive statements. It is not an aberration but a variation, was a comment made by Justice Indu Malhotrawith regard to section 377.

In a unanimous verdict, in September 2018, the Supreme Court decided to scrap section 377, on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.

Section 377 And The Concept Of Justice

Justice is a crucial element for a well-administered government and society but, sometimes it can difficult to uphold the principles of true justice as well as, frame laws that aim to deliver justice. As defined earlier, justice refers to fair treatment. India is the biggest democracy in the world with a wide diversity of people in terms of culture, religion, caste and race.

Democracy urges the voice of its people to be heard and their demands to be met to a reasonable extent. India has shown diligent progress in the past few decades and has become a power to reckon with but, it is still yet to reduce its orthodox nature in some areas including that of accepting an individual�s sexual orientation.

This particular act criminalized the existence of a specific section of the society, that is, the LGBTQIA+ section. This act was unconstitutional and violated the principle of Social Justice enshrined in the Preamble of the Indian Constitution. It declined them theirright to fair treatment and protection against discrimination solely on the basis of their sexual preference. This law entirely violated several fundamental rights as well the principles of justice.

When law and justice do not compliment each other, nuisance and problems in the administration of the society are bound to happen. Protests and rallies were witnessed all over the country against for the legalization of homosexuality. PILs were filed for the amendment of section 377. The fight against section 377 of the Indian Penal Code, 1860 was long and hard one, but it has finally come to an end and true justice has been delivered. It was a historic day when homosexuality was finally legalized in India and it further opened the leeway to the legalization of same sex marriages and adoptions.

Section 377 And Morality

Some people still consider homosexuality as immoral or a disease, even after its legalization two years ago in India. Morality is the code of conduct made by us that we must follow. However, we often fail to consider that every society has a different set of morals and these norms are not fixated. They change and evolve with time; something that was considered immoral a century ago, may not be considered violating the norms of morality now.

Section 377 of IPC was not consistent with the idea of morality because being a part of the LGBTQIA+ community is not immoral. In the modern day, homosexuality does not violate any principle of morality in the society. As it was rightly held that Section 377 amounts to an unreasonable restriction on the right to freedom to expression since consensual carnal intercourse in private does not in any way harm public decency or morality.

The main idea behind this judgement was to uphold the ideals of constitutional morality. Constitutional morality refers to the moral responsibility of an individual to be faithful towards constitutional values and uphold them with utmost integrity, without any compromise.

Over the years, the outlook on the concept of homosexuality as a whole has evolved especially, in the eyes of Judiciary. Earlier it was considered Against the order of nature. Order of nature means events that are normal and expected to occur naturally if there is no artificial or manmade impediment to the same. The change in stance of the judiciary with respect to the constitutional morality of section 377 depicts that the views and idea of morality of the judiciary have evolved. It has progressed and homosexuality is no longer considered �wrong or unnatural. Section 377 has now become an archaic relic.

Compromising the identity of an individual on basis of orthodox and backwards ideas and beliefs is immoral, discriminating against a community because of their sexual orientation is also immoral, accepting people as they are and letting them be themselves without facing the fear of shame and embarrassment is moral.

This paper set out to analyze the inter-connection between the ideals of law, justice and morality along with scrutinizing the evolution of the term Order of Nature, in context with Section 377 of the Indian Penal Code, 1860. Inconsistency between these essential principles was caused due to section 377, which restricted and criminalized an individual�s self-identity in terms of sexual orientation.

Thereby, depriving all the members belonging to that community the fundamental rights to life, liberty and equality as well as, bereaving them of the basic right to be who they truly are, which led to lack of security and democracy in the society as a whole.

Section 377 was not only highly unconstitutional but also, extremely regressive and conservative in nature. It violated the foundation on which the pillars of justice and morality were established.

After two decades of ardent struggle, this act was amended and homosexuality was legalized. It can be observed that the view of judges with regard to homosexuality and order of nature has changed too. It was earlier declared constitutional on the grounds that it did not violate any of the ideals of the Constitution. But now, the judges realized the importance and requirement of this amendment because sexuality is not a choice.

It is the way a person is born and us, as the society are in no position to punish anyone for the way they are born.

Chief Justice relied on the principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society�s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded.

The meaning of Order of Nature has evolved and the verdict of September 2008, on section 377 of IPC is proof of it.
The rationale behind the act was of the Victorian ages. It is now long gone. Society and morals have progressed and changed over these decades so, there is no reason for the continuing of such a law.

It can be concluded by saying that history owes an apology to members of the LGBTQIA+ community and their families for the delay in providing redress for the ignominy and ostracism that they have suffered through the centuries. Nevertheless, true justice has been delivered and the society has shown a significant progression in its acceptance towards modern morals and ideas.

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