Pre-judgement Matrix: Constitutionality of Section 377 IPC

 

 

Options

Reasons

Maximalist

The Court not only strikes down Section 377 but also guarantees a whole range of rights on the basis of sexual orientation and gender identity which include:

 

  • The right to sexuality and sexual autonomy
  • The right to a choice of a sexual partner
  • Freedom of gender expression

First, the Court Holds that Section 377 violates the:

  • Right to equality under Art. 14 as Sec. 377 discriminates against individuals on the basis of sexual orientation and gender identity
  • Right against discrimination on the basis of sex under Article 15 and elaborates ‘sex’ within Article 15 to include sexual orientation and gender identity
  • Right to privacy, the State has no jurisdiction over actions that occur in the private sphere.
  • Right to dignity, if the State criminalizes a person’s sexual identity, it violates a person’s dignity which flows from the right to life under Art. 21.
  • Right to sexual autonomy and right of choice for sexual are intrinsic to the right to life under Art. 21
  • Right to freedom of expression of sexual orientation and gender identity under 19(1a).
  • Right to equal participation in professional life under Art. 19(1d)

Lean Maximalist

The Court strikes down Section 377.

The Court Holds that Section 377 violates the:

  • Right to equality under Art. 14 as Sec. 377 discriminates against individuals on the basis of sexual orientation and gender identity.
  • Right against discrimination on the basis of sex under Article 15 and elaborates ‘sex’ within Article 15 to include sexual orientation and gender identity
  • Right to privacy, the State has no jurisdiction over actions that occur in the private sphere.
  • Right to dignity, if the State criminalizes a person’s sexual identity, it violates a person’s dignity which flows from the right to life under Art. 21.

Read down

The Court reads down Section 377 instead of striking it down, stating that Section 377 no longer applies to adult consensual relations.

 The Court chooses not to strike down Sec. 377 completely, but read down the ambit because it contains provisions which criminalize actions that ought to be criminalized, such as:

  • Bestiality
  • Rape of men: Sec. 377 provides legal recourse for male rape victims

Minimalist

The Court dismisses the petitions and upholds the constitutionality of Section 377.

It would be very difficult for the Court to judge this way. But if it does, the Court would be assuming a strict notion of separation of powers that it is for Parliament to strike down the law and not the judiciary.