Pre-judgement Matrix: Constitutionality of Section 377 IPC
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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
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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)
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| 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.
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| 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
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| 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. |
