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Tuesday, July 17, 2018

What is Section 377 of the IPC?

The Supreme Court Tuesday began hearing a number of petitions challenging Section 377 of the Indian Penal Code. Here's what you need to know about this provision.

By: Express Web Desk | New Delhi | Updated: July 12, 2018 12:58:29 pm
LGBT activist during the 16th Kolkata Rainbow pride walk 2017 in South Kolkata.. (Express file photo by Partha Paul)

The Supreme Court Tuesday began hearing a number of petitions challenging Section 377 of the Indian Penal Code which criminalises homosexuality. A day before, a five-judge Constitutional bench led by Chief Justice of India Dipak Misra refused to defer the scheduled hearing after the Centre sought more time to file its reply. Apart from Chief Justice, the bench comprises Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.

Here’s what you need to know about Section 377 of IPC:

Section 377 of the IPC states: “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.” This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature and the ambit of this law extends to any sexual union involving penile insertion.

Follow Live Updates | Supreme Court hearing on Section 377

In 2009, in a landmark judgment, the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. Following this, religious groups moved the Supreme Court for a direction against the verdict.

The Supreme Court in 2013 overruled the Delhi High Court’s order and reinforced criminalisation of homosexuality stating that Parliament’s job was to scrap laws. This judgment by the apex court was highly criticised by the LGBTQ community in India and was seen as a setback for human rights.

In January 2018, the Supreme Court said a larger group of judges would re-consider the previous judgment and examine Section 377’s constitutional validity. Revisiting their 2013 verdict, the top court added that it will decide on the petition by five persons living in fear of being prosecuted. The Supreme Court had then said: “The section of people who exercise their choice should never remain in a state of fear.”

Read SC begins hearing petitions challenging Section 377 — A timeline of the case

Justice Dipak Misra had further observed, “Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.”

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