Flourishing Right to Life and Personal Liberty: Verdict on Section 377 & 497 of IPC

Flourishing Right to Life and Personal Liberty: Verdict on Section 377 & 497 of Indian Penal Code, 1860

Law in India has come into existence from religious values. The sources are Vedas, Upanishads, and other religious texts. The introduction of the common law system was made during British-raj. The Indian penal code is a live example that was drafted in 1860 by Thomas Macaulay. When British raj came, they made homosexuality and adultery a crime inspired by the 1553 Buggery Act, that outlawed homosexuality from Britain. Though England itself has decriminalized both the laws, there are many countries which are following this British legacy and have yet criminalized these act. After being followed for several years the apex court has now scrapped down two anarchic laws that violated the Indian constitution, giving their rights to people.

The LGBT community has gone through several phases; life has never been easy for them particularly in India. Being gay is still a taboo in society and wasn’t talk in the open since it is not a “so-called” natural one. Sadly, there are not many laws that protect gay rights. They face more legal and social distinction than non – LGBT persons. Most of the LGBT people are afraid of disclosing their identity to family and society, even to the one they love because of the fear of acceptance, who might see homosexuality as disgraceful. We have recognized their existence but failed to accept and cherish them. They face discrimination because of their sexual orientation and got rejected from jobs and promotions, get fired from their job, and not preferred while hiring.

There was no such rule in history that prohibits homosexuality but during the British era, this was criminalized by the British government as an offence affecting the human body. After the British legislation, the sense of respect toward the LGBTQ community was lost. The battle was so hard and tiring for them to make society understand that there is no control over the person to whom they get attracted, it is all biological phenomena and is natural. On September 6, 2018, the supreme court of India issued its historic verdict and ruled that section 377 is unconstitutional as it is violating the fundamental rights of a person. According to respondents this section keeps check on child sexual abuse and not just homosexuality. The Court held section 377 to the extent that it criminalizes the consensual sexual activity of adults in private, to be violative of Article 14, 15, and 21 of the constitution of India. When every other person has the right to choose their life partners then why don’t they, they are also the citizen of India.

Justice Indu Malhotra said, “History owes an apology to these people and their families.”[1] In 2009 the Delhi High Court had decriminalized the section saying it to be a direct violation of fundamental rights. But in 2013 the Supreme Court set aside the above ruling of the high court. This led to the LGBT community vulnerable to police assault and torture as they had become open about their preferences following the High Court’s judgment.

But last year the five-judge bench of the Supreme Court of India again decriminalized section 377. The bench led by the then CJI Dipak Misra diluted section 377 of the Indian penal code, to exclude all kinds of adult consensual sexual behaviour. The law will stand on the written account to tackle unnatural sexual offences against minors and animals like anal intercourse and sex. Article 21 of the Constitution of India, is a fundamental right of every person including non-citizen of India, promising the right to life and personal liberty. According to article 21, every person shall have the right to life and personal liberty according to the procedure of law. This historic verdict of the Supreme Court now allowed the same sex to legally cohabit. In the case Navtej Singh v. Union of India, the top court ruled that the Indian constitution prohibits discrimination based on sexual orientation via the category of sex. The Supreme Court also said that other countries have recognized their civil rights, and it’s also time for India to do so. They suggested making sexual harassment at the workplace to be gender-neutral.

There is very strong support and protest on social, political, and religious grounds for same-gender consensual sexual intercourse between adults. There are many cases where these people are being brutally harassed and assaulted on the revelation of their sexual orientation and were forced to go against their biological nature to be a part of society. In 2003, a transgender was gang-raped in Bangalore. In 2009 there was a gay abducted by police and got raped for many days and was forced to make a derogatory comment about himself. The lesbian couple was murdered by their own family for bringing disgrace to the family and society. According to a survey taken in 2018, it was found that there is a third of gay men who are married to women. These are not the only cause, there are many more and this is all because of the close mindset of society. People need to be progressive in thinking and when they fail to do so, then the law should have the back of progress and bring the change in society according to the time.

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After a few days of this historic judgment, there came another landmark judgment that struck down section 497 of IPC. The five-judge bench headed by the then CJI Dipak Misra was unanimous in striking down the validity of section 497 of the Indian Penal Code.  The section says that any person who had sexual activity with the wife of another person without the consent of her husband will be guilty of the offence of adultery and shall be punishable with imprisonment extending to five years or with fine or with both.

The petition was filed against it contending it to be violative of Article 14 and 15. There are many loopholes in the section which brings discrimination. When the law provides equality to everyone then how can this section discriminate between a man and a woman? Here the provision treats a woman as an object which has no opinion of her own. The thing matter is only the consent of the husband but nothing said for the wife’s consent. Another thing is that the wife cannot sue her husband or the woman with whom he was engaged in extramarital sex, only the husband can sue another man even if the sexual intercourse was with the consent of the wife. The discrimination is not only with a woman but with a man too. Only they are being prosecuted for the offence while the wife is exempted. The law was annulled on 27 September 2018, by the Supreme Court and was no longer in function.

Then CJI Dipak Misra said, “it’s time to say that a husband is not the master of his wife”. The law was 158 years old and made in the British colonial time who themselves have done away with it. It should have been removed a long year ago but better late than never. The extramarital affair is no longer any offence but is a ground of divorce as it was gender bias and derogatory to article 15 of the Indian constitution of India. This archaic law being gender stereotype annulled to provide equality and dignity to the women. This brings women empowerment in society and riddance from the patriarchal system where the man having dominance over women and treating them as chattel. The central government told the apex court that adultery should remain a criminal offence for the sanctity of marriage and institution of family and an attempt to strike down such laws would hurt ‘Indian ethos”. The court replied that each partner to marriage is equally responsible for the sanctity of marriage and keeping adultery criminal will only bring shame to the family and affect the mental health of children. If it remains a criminal offence then the dignity of husband and wife and their privacy will be violated.

This annulment has given the freedom to women and the right to equality and the right to dignity. Earlier women were suppressed by the men leading society and conserve just to the homes. There was no education and they have no idea of how to lead a satisfying life. But as the time passes and the women started fighting over their rights, many changes came which gave the opportunity to them to access their right in the men leading world and this is all possible because of the progressive thinking people of society who supported them and the very law of land our constitution stands for those who defend their rights. The forced marriage and fear of being prosecuted for extramarital affairs had made the marriage a burden to both the partners, but after it scrapped down nearly 70% were feeling liberated from the pressure, and one- third of them were women. There is no reason to keep adultery as a crime. The personals are sufficient to deal with the extra-marital affair as a civil wrong.

Also Read: Homosexuality in India

Flourishing Right to Life and Personal Liberty: Verdict on Section 377 & 497 of IPC


[1] Navtej Singh Johar & Ors. v. Union of India the Secretary Ministry of Law and Justice, 2018

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