ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

A+| A| A-

Section 377: No Jurisprudential Basis

Section 377 of the Indian Penal Code, which criminalises homosexual relations, has no jurisprudential justification as it makes illegal a consensual, voluntary sexual act that does not harm a third party and falls within individual autonomy. The State cannot use its power to punish a particular practice on grounds of immorality only because a majority believe it to be so. This law also defines a criminal class not by virtue of its behaviour but by sexual orientation.

As the debate over the validity of Section 377 of the Indian Penal Code (IPC) an archaic law that criminalises voluntary sexual intercourse against the order of nature, rages in the Delhi High Court in the Naz Foundation case, across the media and political and social arenas of the country, India seems to have finally mustered the courage to at least question this law on a constitutional and practical front. When our secular government falls back on religious texts to save the moral fabric of our society, it becomes crucial to analyse the jurisprudential foundations of this section, perhaps the one aspect that can make or break a law. Not surprisingly, once put to the test, the jurisprudential brasstacks behind this law collapse like a pack of cards.

Dear Reader,

To continue reading, become a subscriber.

Explore our attractive subscription offers.

Click here

Or

To gain instant access to this article (download).


Pay
INR 59

(Readers in India)


Pay
$ 6

(Readers outside India)

Support Us

Your Support will ensure EPW’s financial viability and sustainability.

The EPW produces independent and public-spirited scholarship and analyses of contemporary affairs every week. EPW is one of the few publications that keep alive the spirit of intellectual inquiry in the Indian media.

Often described as a publication with a “social conscience,” EPW has never shied away from taking strong editorial positions. Our publication is free from political pressure, or commercial interests. Our editorial independence is our pride.

We rely on your support to continue the endeavour of highlighting the challenges faced by the disadvantaged, writings from the margins, and scholarship on the most pertinent issues that concern contemporary Indian society.

Every contribution is valuable for our future.