CONSTITUTIONAL STATUS OF SECTION 377 I.P.C.

Section 377 of Indian Penal Code provides punishment for unnatural sex. Supreme Court of India deliberating on the constitutional status of section 377 I P C in case of  NAVTEJ SINGH JOHAR & ORS.  Vs. Union of India,  WRIT PETITION (CRIMINAL) NO. 76 OF 2016, decided on September 6, 2018 declare it unconstitutional in those cases where unnatural sexual act is with consent.

In cases where unnatural sex is without consent of the parties, the section  will be applicable. The section will also be applicable in cases of beastiality. So in cases of unnatural sex section 377 I P C will not be applicable only if it is with consent otherwise it is applicable. The consent must be a free consent and parties must be 18 years of age or above.

In its  judgment the Supreme Court Concludes:-

 "i. In view of the aforesaid findings, it is declared that insofar as Section 377 criminalises  consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.

 ii. The declaration of the aforesaid reading down of Section 377 shall not, however, lead to the re-opening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages.

iii. The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of beastiality.

iv. The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby overruled

It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion."