Section 377 & It's Consequences

Firstly, I would like to inform you that your query needs correction as for the fact, the law of legal provisions you’re talking about is Article 370 of the Constitution of India.

The Article 370 acknowledges the special status of the state of Jammu and Kashmir in terms of autonomy and its ability to formulate laws for the state's permanent residents. In the 1954 Presidential order, among other things, the Fundamental Rights in the Indian Constitution were made applicable to Kashmir with exceptions.

In the case of Jammu and Kashmir, the representatives to the Constituent Assembly requested that only those provisions of the Indian Constitution that corresponded to the original Instrument of Accession should be applied to the State and that the state’s constituent assembly, when formed, would decide on the other matters. Government of India agreed to the demands shortly before the above meeting with the other states.

In accordance to the Article 370 was incorporated into the Indian Constitution, which stipulated that the other articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the State’s constituent assembly. This was a “temporary provision” in that its applicability was intended to last till the formulation and adoption of the State’s constitution.

However, the State’s constituent assembly dissolved itself on 25 January 1957 without recommending either abrogation or amendment of the Article 370.

Now let me introduce section 370 of the Indian Penal Code, 1860 to you, in order for you to understand it more easily.
Section 377 of the Indian Penal Code criminalises consensual private s*xual acts between adults. It came into force in 1862.

Many advocates and lawyers of the country have argued that the notorious Criminal Tribes Act, 1871, which branded a number of marginalised population groups like transgenders as “innately criminal” before it was repealed, drew inspiration from Section 377.

Though the 172nd report of the Law Commission of India recommended the deletion of Section 377, no action was taken.
Where the penal provision states that - “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 descripttion for a term which may extend to 10 years, and shall also be liable to fine". In 2009, the Delhi High Court read down Section 377 to apply only to non-consensual, penile, non-v**ginal s*x, and s*xual acts by adults with minors.

In December 2013, a two-judge Bench of the Supreme Court, on appeals filed by private parties, set aside the High Court’s judgment. It upheld the criminalisation of gay s*x while virtually denying the LGBTQ community the right to s*xuality, s*xual orientation and choice of partner.

In July 2018, a Constitution Bench, led by Chief Justice Dipak Misra, re-opened the entire issue, saying a section of people could not live in fear of the law which atrophied their rights to choice, privacy and dignity.

Arguing for around 20 IIT students speaking against the Section 377, an advocate told the Supreme Court that the penal provision reduced the LGBTQ community to a status of “Unconvicted Felons.”

But the decades-long struggle for seeking dignity and respect took a significant turn for the better with a progressive judgment of NALSA delivered by a Bench of the Apex Court, led by Justice K.S. Radhakrishnan. However, this verdict recognised transgender people as ‘third gender,’ possessing rights, including marriage, adoption, divorce, succession and inheritance.
More or less, it condemned discrimination on the basis of s*x as a violation of the fundamental right to equality, provided under the Constitution.

During August 2017, the fight against Section 377 got a second major boost when a nine-judge Bench of the court, led by the then Chief Justice of India J.S. Khehar, upheld the right to privacy as a fundamental right intrinsic to life and liberty. This Bench ripped apart the December, 2013 judgment.

The nine-judge Bench, in its main opinion authored by Justice D.Y. Chandrachud, underlined the impact of Section 377, saying it “poses a grave danger to the unhindered fulfilment of one’s s*xual orientation, as an element of privacy and dignity.” The two judgments signalled that the court was ready to change its opinion on Section 377. They became the pillars on which the petitioners based their case before the Constitution Bench.

I'm leaving two links which you can view in order to know more about section 377 and article 370 as well. Do have a look for more input.

SECTION 377 - https://www.thehindu.com/news/national/what-is-section-377-and-why-does-it-matter/article24483691.ece

ARTICLE 370 -
https://en.wikipedia.org/wiki/Article_370_of_the_Constitution_of_India

Hope it helps.

Hello,

Kindly go through the following articles for more input:

https://www.lawyersclubindia.com/articles/critical-analysis-of-the-decriminalized-section-377-9436.asp

https://www.lawyersclubindia.com/articles/bestiality-and-section-377-ipc-5826.asp

https://www.lawyersclubindia.com/articles/section-377-struck-down-10541.asp

https://www.lawyersclubindia.com/articles/section-377-some-points-to-remember-7098.asp

https://www.lawyersclubindia.com/articles/rainbow-at-the-end-of-the-tunnel-pivotal-judgment-by-sc-on-section-377-9564.asp

Thank you