SCOPE OF SECTION 377 IPC
By Shruti Agrawal July 26, 2016
Supreme Court (SC) has recently upheld the validity of section 377 IPC. It has been a controversial topic. SC has held that S.377 is constitutional and has not violated any article of the constitution. They have also ruled that legislature has the power to legislate on the validity of S.377. It was argued that there was no violation of article 21 as their life style was against the natural course.
Many of us have been perplexed by this order. Who all are endangered by this judgment? In this blog, I have discussed the different types of sexual orientation and the impact of this judgment on them.
Section 377 criminalize any carnal intercourse which is against the order of nature. Carnal means any sexual desire. Carnal intercourse against the order of nature includes sodomy, anal sex, oral sex, or any other penial-non-vaginal sexual activities. This vague definition has resulted in a lot of trouble. People having different sexual preference have been restricted from exercising their freedom which is consider as a breach of article 21 (Right to Life) of the Indian constitution.
In the following section, I have defined different types of sexual and affectional orientation an individual may have and how their orientation may be illegal under this section.
These are the people who are considered as “natural”. They belong to the heterosexual community as they are sexually attracted to opposite sex. These people are exclusively attracted to the opposite sex. These people sexualities are considered societally normative.
These are the men who are interested in men. They are sexually attracted to men. They come within the category of ‘homosexual’. These are the people whose lifestyle is considered as unnatural. It is also believed that their conduct of sexual life increases the risk of aids. The validity of S.377 restricts the freedom of these individuals under article 21. As sexual activity of gay couple is considered against the order of nature.
These are the women who are interested in women. They are sexually attracted to women. They come within the category of ‘homosexual’. Even, their lifestyle is consider unnatural as their sexual conduct do not lead to the possibility of reproduction. Validity of S.377 partially endangers the freedom of these individual under article 21.
These are the people who are interested in both the genders, male and female. They are sexually attracted by both the gender. This attraction does not have to be equally split. These people belong to polysexual category. Section 377 has restricted their freedom partially. There are free to have sexual relations with the opposite gender, however with ‘same sex interest’ their freedom is restricted.
These are the people who chose to live as a different gender other than the one that is assigned to them at their birth. These people are the ones who has attraction towards the same sex, however, it is different from a gay or lesbian relation. These people consider themselves as the other gender. Freedom of these people is not obstructed by the validation of section 377.
These are the people who psychologically identify themselves as a different gender, other than the one assigned to them on their birth. These people often wish to transfer their bodies surgically and hormonally. These people identify themselves with the other gender. Freedom of these people is not obstructed by the validation of section 377.
At the end of the blog, I would just like to conclude that we live in a diverse society where people have different choices. S.377 of IPC have curbed the freedom affecting the diversity in the society. S.377 promotes only one kind of relationship i.e. heterosexual relations which results in reproduction. We live in a society where every adult has a choice to make his own decision. The law should not interfere in the personal life of an individual if the personal choice of the individual does not affect the society.
- Queer 101: Identity, Inclusion, And Resources, (http://www.uua.org/lgbtq/identity/queer) (last seen on 18th July, 2016)
- LGBT Section 377, (http://www.lawyerscollective.org/vulnerable-communities/lgbt/section-377.html) (last seen on 18th July, 2016)
- Comprehensive* List of LGBTQ+ Term Definitions, (http://itspronouncedmetrosexual.com/2013/01/a-comprehensive-list-of-lgbtq-term-definitions/) (last seen on 18th July, 2016)
- Sexual Orientation & Gender Identity 101, (http://www.uua.org/lgbtq/identity) (last seen on 18th July, 2016)
- Picture Credits: https://library.fiu.edu/blog/ballm/trials-womens-gender-studies-and-lgbtq-studies-resources
Shruti Agrawal (Jindal Global Law School, 4th Year)
Section 377 , LGBTQs , infringement of fundamental rights , gay rights , lesbian rights , bisexual rights , transgender rights , transsexual rights , section 377 IPC , indian laws , article 21 , individual freedom
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