Section 377, I.P.C. and its Future Repercussion

In 2018 we all celebrated the landmark judgement delivered by a constitutional bench comprised of Justices Indu Malhotra, D.Y Chandrachud, R F Nariman, A M Khanwalkar and headed by Chief Justice of India Dipak Misra. September 06^th 2018 was the day when India’s streets were filled with rainbow flags and people coming on to the street celebrating ‘love’.

What is section 377?

Section 377 of The Indian Penal Code, 1862 (Hereinafter: Sec. 377) refers to ‘unnatural offences’. When someone voluntarily has carnal intercourse against the order of nature with any man, women or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine[1]. It also included consensual sexual acts of adults such as oral and anal sex in private as unnatural and punishable[2].

The Delhi High court’s 2009 verdict

It was a tortuous route to get where we are today A bid to repeal Sec. 377 was initiated in 2001.

NGO Naaz Foundation was one the first foundation to raise the issue of consensual ‘Gay sex’ being illegal in India. In 2001, the NAZ foundation approached the Delhi High court(Hereinafter: “Delhi HC”), where they decriminalized sex between two consenting adults of the same gender by holding the penal provision as “illegal”.

Soon again in 2013, anti §377 activist then submitted a “curative petition” – a formal request to review an earlier court order perceived as “miscarriage of justice”- and in 2016, the apex court decided to revisit the 2009 Delhi HC judgement. The Hon’ble Supreme court of India overturned the 2009 Delhi HC judgement and upheld §377 as ‘legal’. It had made it clear that it was not going into curative petitions; and would adjudicate on the fresh writ petitions in the matter.

The landmark 2018 judgement

On September 6^th 2018, when the apex court announced criminalization of § 377, a colonial-era law and also ruled discrimination based on sexual orientation as a fundamental violation of rights. The court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional[3]. This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation.

CJI Dipak Misra read out the judgements of the 5 judges bench. He quoted “­criminalizing carnal intercourse is irrational, arbitrary and manifestly unconstitutional.”[4]. Followed by Justice Indu Malhotra, who said she believed “history owes an apology to the LGBT community for ostracizing them ”[5]. Justice DY Chandrachud also stated that “the state has no right to control private lives of LGBT community members and that the denial of the right to sexual orientation is the same as denying the rights to privacy”[6]. It was held that “the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation”[7].

What next?

Now that the law recognizes the LGBTQ+ community, what is the next step? The people of the LGBTQ + community say that the next step is the legal fight for civil rights such as same-sex marriage, inheritance of property, and sharing insurance. If equality of the community is now a fundamental rights; then rights to marry, bequeath property, share life and medical insurance are all part of it. Rights, respect and dignity is what the community is asking for and denying that is impudent.

Even today, in this modern era, few conservatives oppose same-sex marriage because it is not ‘compatible with the norms of nature’. The 493 pages Supreme court judgement spoke at length about how social norms cannot regulate constitutional liabilities and affirmed the rights of the community without going into the question of civil rights.

Over the past decade, many queer and trans individuals have got married in community ceremonies; while others have moved to other countries that recognized same-sex marriage to marry their partner. Countries like the UK and US has legalized same-sex marriage followed by rights to adopt and inheritance etc.

So,  giving the LGBTQ+ community a fundamental right and recognizing them was a big step forward for India, but denying the civil rights that a heterosexual person enjoys in our country is simply a step back for our community. The narrow mindset of some people, especially the anti-LGBTQ+ community activists, is bringing the nation down by not letting India evolve.

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References:

[1] Section 377 of The Indian Penal Code, 1862

[2] ibid

[3] “Historic India ruling legalizes gay sex”. BBC News. 6 September 2018.

[4] ibid.

[5] same as above.

[6] same as above.

[7] Navtej Singh Johar v. Union of IndiaW. P. (Crl.) No. 76 of 2016 D. No. 14961/2016