LGBT Rights – Transgender Bill, Sec. 377, etc.

SC notice to govt. on petition to outlaw Section 377


Mains Paper 1: Social issues | Social empowerment

From UPSC perspective, the following things are important:

Prelims level: Section 377, Article 21 of the Constitution

Mains level: Suresh Kumar Kaushal versus Naz Foundation case and its implication on human as well as fundamental rights

Striking down section 377

  1. The plea seeks the ‘Right to choice of sexual orientation’ to be declared as part of the fundamental right to life and personal liberty under Article 21 of the Constitution

Revisiting its previous ruling

  1. SC has decided to revisit a December 2013 verdict of the Supreme Court in Suresh Kumar Kaushal versus Naz Foundation
  2. It dismissed the LGBT community as a negligible part of the population while virtually denying them the right to choice and sexual orientation
  3. The reason for review given by SC was ‘a section of people cannot live in fear of a law which atrophies their right to choice and natural sexual inclinations’
  4. Societal morality changes with time and the law should change pace with life
  5. The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample or curtail the inherent rights embedded with an individual under Article 21 (right to life)


Section 377 of the Indian Penal Code

  1. Section 377 is an archaic law that was introduced during the British era in the 1860s and makes gay sex a crime for which the punishment can be a life term
  2. This also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code
  3. Section 377 of the Indian Penal Code states, “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 a term which may extend to ten years, and shall also be liable to fine”
  4. In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution
  5. In 2013, the Supreme Court canceled the Delhi high court order and re-criminalized homosexuality. It said that it was the job of the parliament to decide on scrapping laws
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