SC strikes down section 377 of IPC

The Supreme Court said that right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.

By Author  |  Published: 6th May 2019  12:41 amUpdated: 5th May 2019  1:53 pm
SC

06 As all five judges signed the verdict, it signalled the approval of homosexuality and gay sex in India.

HOMOSEXUALITY

Case Name: Navtej Singh Johar & Ors. V. Union of India
Issue: Validity of Section 377

Judgement: Section 377 is unconstitutional, to the extent it criminalizes consensual sexual acts between adults, whether homosexual or heterosexual. However, bestiality will continue as an offence.

Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression

The discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to biological sex of male or female, but intended to include people who consider themselves to be neither male nor female. Gender identity is a part of the right to life and liberty with dignity guaranteed under Article 21.

Backgrounders

Section 377: Section 377 of the Indian Penal Code (IPC) – criminalises consensual sexual acts of Lesbian, Gay, Bi-sexual and Transgender (LGBT). It 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.”

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 15 (1): The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them

Article 16 (2): No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect or, any employment or office under the State

Article 19 (1) (a): All citizens shall have the right to freedom of speech and expression;

Article 21: No person shall be deprived of his life or personal liberty except according to procedure established by law.


SECTION 498A IPC

Case Name: Social Action Forum For Manav Adhikar  V. Union of India

Issue: reconsideration of the directions to check abuse of Section 498A of the IPC laid down in the 2017 apex court judgment in Rajesh Sharma v. UOI.

Judgement: SC modifies the earlier directions issued to prevent misuse of 498A IPC, says no to ‘Welfare Committees’.

The court has withdrawn the earlier direction issued by a two judges bench that complaints under Section 498A IPC should be scrutinised by Family Welfare Committees before further legal action by police.

Background

The Supreme Court in 2017 in Rajesh Sharma vs UOI ordered that ‘family welfare committees’ to be set up in districts and these committees were supposed to act as a vanguard against “disgruntled wives” using the anti-dowry harassment provision of Section 498-A of the Indian Penal Code (IPC) as a “weapon” against their husbands and in-laws, young and old, rather than as a “shield”.

It had held that no arrest should normally be effected on dowry harassment complaints until the committee confirms the genuineness. Even the police could register an FIR only after the committee concerned cleared the complaint as valid and not frivolous.

Section 498A IPC – Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.


Hadiya case

Case Name: Shafin Jahan V. Ashokan K. M. & Ors

Issue: Appeal against the Kerala High Court judgment annulling the marriage between Hadiya and Shafin Jahan

Judgement: The Apex Court quashed the High Court judgment in view of Hadiya’s statement during her personal appearance before the Court in November, 2017, and opined that the High Court could not have annulled the marriage under Article 226 of the Constitution of India. It also declared that ‘Right To Change Of Faith Is Part Of Fundamental Right Of Choice’

Background

Article 25: All persons are equally entitled to “freedom of conscience and the right freely to profess, practise and propagate religion.” subject to public order, morality and health, and to the other fundamental rights guaranteed in the Constitution.

Article 26: gives every religious group a right to establish and maintain institutions for religious and charitable purposes, manage its affairs, properties as per the law. This guarantee is available to only Citizens of India and not to aliens.

Article 27: This Article mandates that no citizen would be compelled by the state to pay any taxes for promotion or maintenance of particular religion or religious denomination.

Article 28: This Article mandates that No religious instruction would be imparted in the state funded educational institutions.

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