Oct 10,2019 | 15 min read

Decriminalization of Section 377: Reality or Facade?

Author - Associate Aashi Agrawal

On September 6, 2018, a historic judgment was made by the Supreme Court of India which decriminalized Section 377 of Indian Penal Code. Supreme Court ruled that consensual adult gay sex is not a crime. The verdict included the members of the LGBTQ (Lesbian, Gay, Bisexual, Transgender Queer) community. The LGBTQ community has always been considered as a taboo in the society. The verdict originated a sense of inclusiveness among those members.

Before this verdict, the vast majority of the LGBTQ Indians remained to live double lives, putting on a false front to be heterosexual because of the immense fear of confronting prejudice or impairment and discrimination.

Decriminalization of the severe and mouldy section 377 of Indian Penal Code has marked an end of an era where this brutal law will no longer be able to violate human rights of a certain kind and to foster and facilitate an atmosphere in which millions of people have faced discrimination because of their sexual orientation or gender identity.

Section 377 reads: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.”

Section 377 is a toxic part of the British legacy which was introduced when India was under the British regime. It imitated a 16th-century law, called the Buggery Act.

The case regarding Section 377 was raised in 2001 when a non-governmental organization called the Naaz Foundation and AIDS Bedhbhav Virodh Andolan approached the Delhi High Court instituting the original lawsuit to decriminalize homosexuality. Following which a widely-documented hearing (including contradictory stands) continued. On July 2, 2009, a landmark judgment was made by Delhi High Court which held that section 377 has violated Article 21 of the Indian Constitution.

Again, on December 11, 2013, a two-judge bench of the Supreme Court overturned the HC's 2009 decision and re-criminalized millions of dreams, mentioning that it was for Parliament to take action upon the case instead of any courts.

On August 24, 2017, a Constitution Bench of the Supreme Court held that privacy is a fundamental right. Section 377 decision was called “unsustainable” by Justice Chandrachud, in particular, noting that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. It was a call for equality by SC which didn’t outrightly declare section 377 to be unconstitutional because the review petition was still pending.

In 2018, a total of five people including dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Puri filed a petition to an apex court asking to re-look the judgment passed in the case of Naaz Foundation which was heard by a three-member SC bench. Post that, the same case was passed to a five-member SC bench constituting Chief Justice of India- Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra, who passed the recent judgment, which was much expected by now.

During the case and all those hearings, gender rights activists and people of the LGBTQ community asserted that Articles of Indian Constitution, namely Article 14 which guarantees equality to every individual and Article 21 which guarantees life and liberty, were clearly violated by section 377.

Throughout all these processes, one should not lose sight of the fact that laws like the IPC are neither Indian nor god-given. Such laws should not be immutable as they lose value if they are not abandoned, rewritten, or amended, to ensemble changing social, cultural, and economic needs.

Even after decriminalization of section 377, do the members of the LGBTQ community have all the rights of an ordinary citizen? This thought being intricated needs to be elaborated in various contexts. This decision is quite a beginning for a long fight of complete freedom for all. The LGBTQ community is now sanctioned to all the constitutional rights and also the liberties protected by the constitution.

SC in its judgment mentioned that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.” The judgment included the words according to which the LGBTQ members can now enjoy their personal space without getting judged or penalized but there is still a lot in a veil. They still can’t get married or adopt a child together, or in order to be a legal guardian of a child, they have to live apart. The members still have to suffer discrimination on the ground of ambiguity in the right of inheritance and other multiple fronts like family planning, life insurance policies, tax planning, etc.

Decriminalizing section 377 is a dawn of a new era where targeted people who have suffered psychologically and are subjected to violence and discrimination, are free to enjoy their sexual orientation in their personal space. True and complete freedom is yet to be achieved.

The recent judgment leads everyone to believe that indeed the Indian Judiciary is a bastion of fundamental rights in the country. The bench compensated for the delay in justice by providing permanent rights to homosexuality which now cannot be easily revoked.

The court recognized sexual orientation as a “natural and inherent” biological phenomena, and not a matter of choice

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