Do We Nee To Repaeal Section 377 IPC?


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Section 377 IPC( Unnatural Offences)-Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for 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 offense described in this section.

The Supreme Court has very recently on 11 th December 2013, set aside the Delhi High Court judgment which had earlier decriminalized gay sex on the ground of of Section 377 IPC being unconstitutional.
It however allows appeals filed by various social and religious organizations for making gay sex a criminal offence.

“There is no constitutional infirmity in section 377 of IPC which makes gay sex an offence punishable with upto life imprisonment”, as per the Supreme Court Verdict..
The apex court verdict upholding Section 377 IPC came 21 months after it had reserved its verdict in March 2012. With the apex court verdict, the operation of penal provision against gay sex has come into force.

According to Additional Solicitor General, Ms.Indira Jaising- “Historical opportunity to expand constitutional values has been lost. It is surprising that the court which does judicial review on many issues has put the ball in the court of Parliament to decide on homosexuality,” said ASG Indira Jaising on Supreme Court verdict on homosexuality.”

As soon as the verdict was pronounced, gay activists in the court looked visibly upset. Our ancient Hindu scriptures are silent on the issue of Homosexuality.
However, the Supreme Court threw the ball back into the court of legislative or Parliamentary prudence to repeal section 377 IPC and decriminalize gay sex..

Heads of various religious group welcomed the decision of the Supreme Court criminalizing homosexuality and said the verdict was in line with eastern traditions and India’s moral values and religious teachings.

Within 9 days of the above Supreme Court Verdict, the Government of India has filed a review petition in the Supreme Court against the Supreme Court Verdict on 20-12-2013 on 76 grounds and some of them being:

The review petition contended that the December 11 judgement of the apex court setting aside the Delhi High Court verdict decriminalizing sexual intercourse between same sex of consenting adults is “unsustainable”
.The review petition contended that the December 11 judgement of the apex court setting aside the Delhi High Court verdict decriminalizing sexual intercourse between same sex of consenting adults is “unsustainable”.

The Centre’s petition settled by Attorney General GE Vahavati sought that oral arguments be heard in an open court before disposing of its review petition

.The review petitions are generally decided in chamber hearing. . In the petition filed through advocate Devdutt Kamath – the Centre has contended that the judgement passed by Justice GS Singhvi (since retired) and Justice SJ Mukhopadhaya “suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by this court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21(Right To Equality before Law and Equal Protection of laws, Right To non discrimination and Right to Life and Personal liberty etc, respectively”.

The petition said though the apex court’s verdict noted the submissions of the Attorney General, the same were not at all dealt with in the entire 98-page judgement.
“It is submitted that the petitioner (Centre) had found no legal error in the High Court decision and thus had accepted the correctness of the same (affidavit on behalf of Union of India through the Ministry of Home Affairs dated March 1, 2012).”

“Though Parliament is mandated with the task of enacting legislations, it is the Executive, i.e. the Government that defends the constitutionality of statutes in this court,” the petition said.
It further added, “This court could not have ignored the fact that the Union of India had made a considered decision not to challenge the High Court decision and had accepted the verdict that Section 377 was unconstitutional, in so far as it criminalized adult consensual sexual acts in private.”
The Centre also questioned the locus standi of the third parties on whose appeal the apex court had passed its verdict.

“The High Court judgement was challenged mostly by third parties, who were not party to the original writ petition in the High Court. This court ought to have dismissed the Special Leave Petitions at the admissibility stage itself, since it is the prerogative of the State to defend the constitutionality of statutes and not that of the third parties,” the petition said.

The Centre also questioned the apex court’s observation that “despite the decision of the Union of India not to challenge in appeal the order of the High Court, Parliament has not made any amendment in the law.”

“This approach is entirely misconceived. If a statute is declared unconstitutional, Parliament has no further role to play to add to or endorse a judicial declaration,” the petition said.
The Centre’s petition submitted that while law-making is the sole responsibility of Parliament, it is the task of this court to judge the constitutional validity of laws.
“Non-amendment of law by Parliament, especially a pre-constitutional law, is not a limitation on the power of judicial review.”

“It is the bounden duty of this court, as the protector and guarantor of fundamental rights of people, to strike down any law that violates the fundamental rights.

”“It is submitted that the judgment suffers from glaring legal errors and seeks to invoke certain legal principles which were inapplicable in the facts of the present case,” the petition said.
The Centre also questioned the apex court’s observation that the high court had overlooked a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans genders (LGBT) and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 of the IPC”
“It is clear that the number of people affected is irrelevant when it comes to deciding an issue of constitutionality. This court, when arriving at this observation, did not take into account settled law on the subject,” it said.

Further, the Centre contended that the bench headed by Justice Singhvi completely ignored the affidavits filed by the Ministry of Health and Family Welfare in 2006 in the Delhi High Court and in 2012 in the apex court.

The affidavits had categorically stated that fear of harassment from law enforcement agencies has driven the MSM (Men having Sex with Men) community underground and away from essential health services, resulting in risky sexual practices and increased vulnerability to HIV.
“This clearly showed that the petitioner believed that Section 377 acted as an impediment to public health interventions,” the petition said, adding that the present review petition has been filed to “avoid grave miscarriage of justice to thousands of LGBT persons” who have been aggrieved by December 11 judgement.

The union government had expressed “deep disappointment” over the verdict and said it was considering all options to restore the Delhi High Court order.

Conclusion: I welcome, the recent Supreme Court verdict overturning the Delhi High Court verdict of decriminalizing gay sex and restoring the constitutional validity section 377 of IPC which criminalizes homosexuality By all means-I strongly opine that Permitting homosexuality of LGBT variety is against nature and is highly reprehensible and is nether equal to marriage or sex between two healthy heterosexual consenting adults who otherwise do not violate any law nor conducive to overall health and well being of the society at large..

One of the main reasons why the State bestows numerous benefits on marriage is that by its very nature and design, marriage provides the normal conditions for a stable, affectionate, and moral atmosphere that is beneficial to the upbringing of children—all fruit of the mutual affection of the parents. This aids in perpetuating the nation and strengthening society, an evident interest of the State.
Homosexual “marriage” does not provide such conditions. Its primary purpose, objectively speaking, is the personal gratification of two individuals whose union is sterile by nature. It is not entitled, therefore, to the protection the State extends to true marriage.
Homosexual activists argue that same-sex “marriage” is a civil rights issue similar to the struggle for racial equality in the 1960s. This is false.

First of all, sexual behavior and race are essentially different realities. A man and a woman wanting to marry may be different in their characteristics: one may be black, the other white; one rich, the other poor; or one tall, the other short. None of these differences are insurmountable obstacles to marriage. The two individuals are still man and woman, and thus the requirements of nature are respected.

Same-sex “marriage” opposes nature. Two individuals of the same sex, regardless of their race, wealth, stature, erudition or fame, will never be able to marry because of an insurmountable biological impossibility.

Secondly, inherited and unchangeable racial traits cannot be compared with non-genetic and changeable behavior. There is simply no analogy between the interracial marriage of a man and a woman and the “marriage” between two individuals of the same sex.

Marriage or unions between same sexes-if permitted, would promote sodomy. Pedophilia, bestiality and even incest. In other mammals, we are not seeing such abnormalities in the form of sex between same sexes. Other mammals choose and mate with the opposite sex for procreation and for perpetuation of the same genre. .perpetuating human race through marriage between two healthy hetero sexual adults from all hues such as different castes, races, religions etc should be encouraged as it promotes healthy procreation in the form of healthy productive children and for the overall health and well being of society at large. Hence, the State should encourage marriages between two hetero-sexual adults irrespective of theirs caste, race, religions, incomes etc and criminalizing same sex marriages/unions do not violate homosexual individuals’ civil rights at all or Articles 14, 15 and 21 of the Constitution of India such as Equality. Discrimination, right to Privacy. Dignity and right to life and personal liberty etc

.However, the issue of criminality of homosexuality is subjudice in the form of review petition filed by the Union of India before the Hon’ble Supreme Court of India.
I’m hopeful that the Hon’ble Supreme Court would decide the constitutionality or otherwise of retaining section 377 in the Indian Penal Code by taking into account all the contentions of Union of India raised in this review petition, and pronounce a well reasoned Judgment upholding the constitutional validity of section 377 IPC by dismissing the review petition and resolve this controversy once for all..

India’s well-known yoga guru, Shri Baba Ram Dev Ji, has commented in approval of the Supreme Court verdict after praying that journalists not “turn homosexual”, stated he could cure homosexuality through yoga and called it “a bad addiction. I can’t agree more.It should be treated like any other Disease

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