Revision as of 13:02, 26 August 2017

Arrests under Section 377 of the IPC

2015: 14% were minors

Shibu Thomas, 14% of those held for gay sex last year were minors, Sep 29 2016 : The Times of India

About 14% of those arrested in 2015 under Section 377 of the IPC for unnatural sexual offences were minors, show National Crime Records Bureau data.Around 1,491 persons were arrested under Section 377, including 207 minors and 16 women, in 2015.

In 2014, for the first time, the NCRB began to record Section 377 cases, and the figures revealed that 1,148 cases were lodged that year. In 2015, 1,347 cases were registered under the offence, a 17.3% increase, and 154 juveniles were arrested. Though the figures do not give a break-up of the gender of the victims, it mentions that in 814 cases, the crimes were committed against children.The remaining crimes were committed against adults.

Section 377 says, “Whoever voluntarily has carnal intercourse against the or der 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.“

A look at the state-wise figures reveals that Uttar Pradesh at 239 reported the highest number of cases under the section. Delhi was next with 174 cases, followed by Maharashtra and Kerala with 159 each. Of the 207 children arrested last year, around 11 were aged under 12, 100 were aged between 12 and 16 and 96 between 16 and 18. Minors come under the special juvenile law which says that if convicted, they can be put in a shelter home for three years.

Court decisions

SC erred in overruling HC on gay sex: Justice Shah

The Times of India, Sep 05 2015

Homosexuality and the Indian law: the judgements of superior courts, 2009-14; Graphic courtesy: The Times of India Feb 03 2016

Pradeep Thakur

SC erred in overturning HC verdict on gay sex: Justice Shah

Former Law Commission chairman Justice A P Shah, who as chief justice of Delhi high court delivered the landmark judgment decriminalizing homosexuality by reading down Section 377 of IPC, has slammed the Supreme Court for reviving the controversial penal provisions by quashing the HC verdict. Speaking for the first time on the issue, Justice Shah told TOI that the apex court had erred in entertaining petitions from various religious organizations and in overturning the HC verdict. “It is very difficult to get a consensus from the political class. So it really should be done by the court in this case,“ he said, adding that the verdict was widely accepted by all sections of society .“What happened after the Delhi HC judgment? The then law minister said the judgment was a `brave' one, and the government itself decided not to appeal,“ Justice Shah said. Slamming the SC for quashing Delhi high court's judgment decriminalizing homosexuality by reading down Section 377 of IPC, Justice A P Shah said on Friday that it was difficult “to turn the clock back“ and hoped that a curative petition pending in the apex court may have some effect.The curative petition is the last judicial resort available to petitioners seeking review of an SC verdict, though it has been pending in the apex court since April 2014. The government made no effort after the SC verdict to bring ammendments in the law decriminalizing homosexuality .

The Delhi HC had, in a 2009 judgment, held that a person could not be discriminated on the basis of sexual orientation and the penal provision violated the funda mental rights of the LGBT (lesbian, gay , bisexual and transgender) community and was unconstitutional.

In its judgment, a bench of Justices Shah and S Muralidhar had decriminalized homosexual acts between two consenting adults in private.The verdict was opposed by religious outfits and an individual who moved the SC which quashed the HC verdict. Enacted by the British, Section 377 of IPC has been on the statute books since 1860 and provides for punishment for up to life imprisonment for “carnal intercourse against the order of the nature with any man, woman or animal“.

August 2017: Privacy is a Fundamental Right/ SC

Dhananjay Mahapatra, A Fundamental Shift On Gay Rights , August 25, 2017: The Times of India

Protecting sexual orientation, privacy lies at the core: Court

New Delhi: The Supreme Court bench provided a big boost to the LGBT community by declaring that a 2014 order by a two-judge bench had gravely erred in annulling a Delhi HC verdict decriminalising gay sex between consenting adults.

“Sexual orientation is an essential attribute of privacy .Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,“ Justice Dhananjay Y Chandrachud, who authored the lead judgment holding privacy to be a fundamental right, said.

The nine-judge bench's order will considerable reduce the previous judgment's chilling effect on LGBT rights. It scythed through the logic in the 2014 judgment in the Suresh Kumar Koushal vs Naz Foundation case saying it was in conflict with the LGBT community's claim based on right to privacy , entrenched in right to life guaranteed under Article 21of the Constitution. This will go a long way in protecting sexual minorities from the impositions of popular or legislative majorities.

The court said the rights of LGBT persons were not a charity. “Their rights are not `socalled' but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity . They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity ,“ the judgement said while criticising the 2014 order's use of the term “so-called“ in the context of gay rights.

Stopping short of setting aside the 2014 judgment that criminalises homosexuality , the SC said, “Since the challenge to Section 377 is pending consideration before a larger bench of this court, we would leave the constitutional validity to be decided in an appropriate proceeding.“ Except this caveat, the privacy judgment recognised and respected the sexual pref erence and orientation of the LGBT community . Justice Chandrachud said on behalf of the bench, “That a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders (as observed in the two-judge bench judgment) is not a sustainable basis to deny the right to privacy .

“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities.... The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.

“Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a democratic Constitution... their rights are as sacred as those conferred on other citizens.

“The view in Koushal judgment that the HC had erroneously relied upon international precedents `in its anxiety to protect the socalled rights of LGBT persons' is similarly , in our view, unsustainable.“