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Section 377 IPC - Latest Court Judgement


    What are the judgements about

    The landmark judgment passed by the Supreme Court being discussed below pertains to the controversial provision of Section 377 of the Indian Penal Code. This provision titled, ’Unnatural Offences’ in effect criminalises unnatural sex between two consenting adults. Given the language of the provision, it was used to criminalise same sex relations affecting members of the LGBTQ community. The judgment pertained to the legality of this provision, especially the effective criminalisation of homosexual relations in India and the Supreme Court was tasked with the duty to decide whether this act could be decriminalised.

    What were the issues being decided in the judgements?

    The Supreme Court was primarily tasked with deciding whether Section 377 of the Indian Penal Code was valid or not, especially the portion which criminalises sexual relationships among the LGBTQ community.

    What was held by the court in these judgements?

    After a detailed analysis of the provision of law under Section 377, the Supreme Court in a unanimous decision, decriminalised sexual relation between consenting adults of the LGBTQ community. The Supreme Court categorically held that discrimination of people on the basis of their sexual orientation is a clear violation of the right to freedom of expression guaranteed to every human being. The court found that the offending portion of the provision under Section 377 inflicts great tragedy and anguish which had to be remedied. The Supreme Court however clarified that the portion of Section 377 pertaining to sexual intercourse with children and animals would remain a punishable offence under the Indian Penal Code.

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    Judgement

    Supreme Court of India


     

    Navtej Singh Johar vs Union Of India Ministry Of Law And ... on 6 September, 2018



                                                                           REPORTABLE



                                           IN THE SUPREME COURT OF INDIA



                                           CRIMINAL ORIGINAL JURISDICTION



                                       WRIT PETITION (CRIMINAL) NO. 76 OF 2016



                             NAVTEJ SINGH JOHAR & ORS.                     …Petitioner(s)



                                                         VERSUS



                             UNION OF INDIA



                             THR. SECRETARY



                             MINISTRY OF LAW AND JUSTICE                    …Respondent(s)



                                                           WITH



                                        WRIT PETITION (CIVIL) NO. 572 OF 2016



                                       WRIT PETITION (CRIMINAL) NO. 88 OF 2018



                                       WRIT PETITION (CRIMINAL) NO. 100 OF 2018



                                       WRIT PETITION (CRIMINAL) NO. 101 OF 2018



                                       WRIT PETITION (CRIMINAL) NO. 121 OF 2018



                                                     JUDGMENT



    Dipak Misra, CJI (for himself and A.M. Khanwilkar, J.) CONTENTS S. No(s). Heading Page No(s) Signature Not Verified A. Introduction………………………………………… 3-11 Digitally signed by CHETAN KUMAR The Reference……………………………………… Date: 2018.09.06 15:12:35 IST Reason: B. 11-15 C. Submissions on behalf of the petitioners…… 15-30 D. Submissions on behalf of the respondents and other intervenors.………………………….… 31-44 E. Decisions in Naz Foundation and Suresh Koushal………………..…………………………….. 45-48 F. Other judicial pronouncements on Section 377 IPC ……………………….………………………….. 48-57 G. The Constitution – an organic charter of progressive rights………………………………… 57-64 H. Transformative constitutionalism and the rights of LGBT community………………………. 65-74 I. Constitutional morality and Section 377 IPC…. 74-81 J. Perspective of human dignity…………………… 81-89 K. Sexual orientation…………………………………. 89-96 L. Privacy and its concomitant aspects…………... 96-111 M. Doctrine of progressive realization of rights…………………………………………………. 111-118 N. International perspective…………………………. 118



    (i) United States……………………………… 118-122



    (ii) Canada…………………………………….. 123-125



    (iv) United Kingdom…………………………. 126-127



    (v) Other Courts/Jurisdictions…………….. 127-129 O. Comparative analysis of Section 375 and Section 377 IPC………………………………….… 129-140 P. The litmus test for survival of Section 377 IPC…….……………………………………………… 140-156 Q. Conclusions………………………………………… 156-166 A. Introduction Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ?I am what I am, so take me as I am? and similarly, Arthur Schopenhauer had pronounced, ?No one can escape from their individuality?. In this regard, it is profitable to quote a few lines from John Stuart Mill:-



    ?But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.? The emphasis on the unique being of an individual is the salt of his/her life. Denial of self-expression is inviting death. Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality. In the present case, our deliberation and focus on the said concept shall be from various spectrums.....



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    What law does the judgement discuss?

    The judgment referred to in this article discusses the provision of section 377 under the Indian Penal Code. This provision is titled, ‘Unnatural Offences’ and states that “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. Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

    Section 377 therefore criminalises sexual relations with children, animals and also sexual relations between persons of the same sex i.e., sexual relations between members of the LGBTQ community. By way of the judgment, the Supreme Court was tasked with the duty to decide whether this portion criminalising homosexual relations was valid or not and if it contravened the fundamental rights of members of the LGBTQ community. As a result, the judgment discusses Section 377 of the Indian Penal Code at great length along with numerous issues of constitutional law and fundamental rights.

    Why do you need a Lawyer?

    It is important for every citizen to understand their rights and the law on sensitive topics such as the legality of same sex relations. It is important to engage the services of a trained criminal lawyer to make sure you do not fall on the wrong side of law on this aspect and are able to obtain proper representation in a court of law when accused or made victim to an offence under Section 377 of the Indian Penal Code. Only a lawyer can ensure that proper justice is delivered to you.

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