Section 377 Decriminalised
TOPIC: General studies 2:
- Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.
- Human Rights Issue – LGBT community issue
- Government policies and interventions in regard to the above issue.
In News: Celebrations broke out 6 September, 2018 as the LGBTQ community and others welcomed the Supreme Court judgment decriminalising consensual gay sex, asserting that the “historic” verdict granted them a basic human right but also acknowledging that complete equality was still some distance away.
In the case: Navtej Singh Johar v. Union of India
Why: A five-judge Constitution bench of the Supreme Court unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC, which criminalises consensual unnatural sex, prompting joyous tears, hugs and dancing across the country. Performing its classic function of judicial review, the court has struck down Section 377 as being violative of Articles 14 and 15.
What does this mean?
- Society cannot dictate a sexual relationship between consenting adults.
- The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal and the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.
- The guarantee of equality at its heart was the guarantee of equal citizenship. The criminalising ambit of Section 377 violated this guarantee as it “singles out people, by their private choices” and “marks them as less than citizens— as or less than human”.
What is Section 377 of IPC?
- Section 377 of the IPC states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.”
- The first petition to get rid of Section 377 was filed in the Delhi Court in 2009 by Naz Foundation, an NGO that works for LGBTQ rights. It stated that the section violates the fundamental rights of the LGBTQ community.
Section 377 has a “chilling effect” on the right of equality, liberty, life, dignity and non-discrimination on the ground of sex – it violates the following fundamental rights as claimed by the petitioners:
- Article 14 – Right to equality
- Article 15 – Prohibition of Discrimination
- Article 21 – Right to Life and Personal Liberty
- Article 19 (1)(a) – Freedom of Expression
The Way Forward:
Transformative constitutionalism: Indian constitution ought to adapt and transform with the changing needs of the times. The very purpose of constitutionalism is to transform society. Dynamic constitutional interpretation allows for the progressive realisation of rights as societies evolve, and is also essential to enable transformative constitutionalism.
Decriminalising homosexuality may not remove the social stigma around it: Law and morality are different issues. Our legislators may frame laws or courts deliver judgments that are ahead of the moral values of a society. But it would be farfetched to expect that moral values can be changed because of court judgments.
Battling the stigma: While this decision by the country’s highest court is certainly significant, there needs to be more of an impetus for social change and removing ignorance from society. There needs to be a campaign to not only to raise awareness but to educate people on what homosexuality is. The government should conduct programmes to end the stigma around homosexuality and individuals employed with the government should receive workshops to sensitise them to subject.
Rape law reforms for male survivors: There is a need for rape law reform to protect male survivors of sexual violence. There is no law to protect adult male victims of sexual assault, whether they are cis- or transgender. Parliament needs to fill these lacunae in the law.
1861: This is the year when Section 377 was introduced by the British Raj. The section was drafted in 1838 by Thomas Macaulay and was brought into effect in 1860. It was modelled on the Buggery Act of 1533 and it states ‘buggery’ is an unnatural sex act which goes against nature, God and man’s will. The act criminalises anal penetration, bestiality, and homosexuality.
Connecting the Dots:
- Do you think section 377 of the IPC is out of sync with the social reality today? What approach would you suggest to address the issue? Discuss.
- In India, Section 377 of the IPC was introduced not as a reflection of existing Indian values and traditions, but rather, it was imposed upon Indian society due to the moral values of the colonisers. Indian society prior to enactment of the IPC had a much greater tolerance of homosexuality. Comment.