Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has carnal intercourse against the order of nature with any man, girl or animal, shall be corrected with imprisonment for
life, or with imprisonment of either description for a term which can be ten years, and shall even be prone to pay a fine.
The Supreme Court made the historic decision of decriminalizing Section 377 of the Indian Penal Code earlier. Their decision legalizes gay sex between consenting adults and comes as much-deserved win for the Indian LGBTQ+ community. Additionally, the bench declared Article 377 as ‘unconstitutional,’ stating that homosexuality is not a mental disorder, but a completely natural state of being.
Initially modeled on Britain’s Buggery Act of 1533, Section 377 refers to ”˜unnatural offences’ and states that whoever has carnal intercourse ‘against the order of nature’ with any man, woman or animal, shall be punished with imprisonment of up to 10 years or fined.
The archaic law has long been used to target and discriminate against India’s LGBTQ+ community and the battle against it first began when NGOs Naaz Foundation and AIDS Bedhbhav Virodh Andolan brought the issue to the Delhi high court in 2001.
Gay sex was briefly decriminalized in 2009 by the New Delhi High Court but the decision was overturned later in 2013. A petition filed in January 2018 by several activists sought to fight the High Court’s decision by bringing it before the Supreme Court.
Chief Justice of India Dipak Misra, justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, heard arguments for and against amending Section 377 in July this year before coming to their decision and signing the final verdict at around 12:25 pm today. The decision was also supported by the Supreme Court’s August 2017 ruling on the Right to Privacy as a fundamental right under the Constitution of India, which many saw as the first step towards protecting the rights of Indian LGBTQ+ individuals.
On the verdict, Malhotra stated, “History owes the members of this community redressal for past persecution and ignorance of the majority. This section infringed on right against discrimination under Article 15, and privacy under Article 21. In view of the findings, in so far as consensual sex between adults is criminalized, the article is struck down.”
Sexual activity with animals, non-consensual sexual activity and other related clauses in Section 377 will however remain criminal.
The Supreme Court also recognized the fact that this is just the first step to making things better for the LGBTQ+ community in India. The general population is highly prejudiced and the ignorance around what it means to be queer is abundant. “Certain sections of our society have been living in shackles of exclusion,” Misra stated. “We have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society.
Majoritarian views and common views cannot dictate constitutional rights.
The LGBT community possess human rights like all other sections of society. Equality is essence of constitution. 377 is arbitrary.
In addition to directing the Union of India to properly broadcast the fact that homosexuality is not a criminal offence and create public awareness to eliminate the stigma, the Supreme Court suggested that the Indian police force should be given be training to better understand the LGBTQ+ community.
Section 377 of the Indian Penal Code came into force more than a century and a half ago, in 1861, when India was still being ruled by the British. It was modelled on Britain’s ‘Buggery Act’ of 1533, and criminalised “unnatural offences”. According to the act, “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.”
Although the Act did not explicitly specify “gay sex” or any other consensual intercourse involve those who are not heterosexual, it was based on the idea that anything other than normative heterosexual sex was “against the order of nature” and, therefore, criminal. Technically this covers forms of sex that are not considered “natural” for heterosexuals, like oral or anal sex, as well as all forms of intercourse between homosexuals.
Although India gained independence from Britain in 1947, its criminal code continued to be based on the one that had been developed during the Raj, even though attitudes towards homosexuality in India have historically been very different to the Western belief that it is immoral. In 2001, a non-governmental organisation called the Naz Foundation approached the Delhi High Court demanding that homosexuality be decriminalised by striking down those portions or readings of Section 377 that made it illegal.
A landmark 2009 judgement from the Delhi High Court did just this, declaring Section 377 to be violative of fundamental rights guaranteed by the Constitution “insofar as it criminalised consensual sexual acts of adults in private”. But a number of other groups, primarily religious, objected to this order and moved the Supreme Court seeking the restoration of Section 377. In 2013, the Supreme Court overruled the Delhi High Court decision, saying essentially that it was for Parliament to take a call on the matter, rather than the courts.
Soon after, a curative petition saw the case being taken back to the Supreme Court, this time with a five-judge Constitution Bench, which on Thursday gave its verdict in the case.
In four different but concurring opinions, the Supreme Court said that Section 377, as far as the aspect of criminalising consensual homosexual sex goes, runs contradictory to the Constitution. In consequence, the court has read down the provision and has declared all forms of consensual sex between competent adults to be legal. This consent, the court clarified, should be free consent without any coercion.
The five-judge bench has given an exhaustive judgement covering a gamut of Constitutional questions, from fundamental rights to questions of privacy to understanding of morality. The court has made it clear that Article 14 of the Constitution guarantees equality before law and this applies to all classes of citizens. It has dismissed the position taken by a two-judge bench in 2013 that the LGBTQ community constitute a minuscule minority and so there was no need to decrminalise homosexual sex. In this, the court said it was important that the rights of minority are protected from majoritarian interference.
“An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.”
— – Chief Justice Dipak Misra and Justice AM Khanwalkar.
What does Section 377 have to do with right to privacy?
In affirming the fundamental right to privacy in 2017, a nine-judge Supreme Court bench declared that bodily autonomy was an integral part of the right to privacy, which in turn is an important facet of right to life guaranteed under Article 21. This bodily autonomy has within its ambit sexual orientation. The right to privacy judgement in a way paved the way for decriminalising homosexuality.
The court said:
“Within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s autonomy is innate to him/her. The said identity under the constitutional schemedoes not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body.”
— – Chief Justice Dipak Misra and Justice AM Khanwalkar.
But what about religious beliefs that prohibit LGBTQ relationships?
All four opinions talk about the preeminence of Constitutional morality in India. The Constitution guarantees equal rights and this cannot be denied to any class of citizens by giving precedence to public or religious morality. On this, the court said:
“LGBT individuals living under the threats of conformity grounded in cultural morality have been denied a basic human existence. They have been stereotyped and prejudiced. Constitutional morality requires this Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living.”
Has Section 377 been completely removed?
No. The section covered all unnatural offences. This means, this law will continue to apply to acts like bestiality.
Does this mean the LGBTQ community now has all rights of an ordinary citizen?
Yes. The court has declared this in principle. In his opinion, Justice DY Chandrachud said:
“Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.”
However, this does not mean the LGBTQ community will immediately get all the rights that have been so far denied to them. Rights like inheritance and marriage are founded in laws that assume heterosexuality as the norm. These have to be changed by amending the individual laws. However, Thursday’s judgement has opened the doors of the Supreme Court for the community to enforce all fundamental rights and push the state to amend all laws to recognise their rights.
Does this mean all those convicted under Section 377 will be freed from jails?
Unfortunately, no. All cases that have been already settled will not be opened. However, the court has asked the lower judiciary to take into account the judgement in all pending cases, even if the trial has begun in those cases.
In her opinion, Justice Indu Malhotra said history owes an apology the LGBTQ community:
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”
The Supreme Court said that a larger group of judges would re-consider and examine the constitutional validity of Section 377 of the Indian Penal Code (IPC), a law that criminalises sexual activities “against the law of nature”, re-opening the debate over homosexuality in India. The top court will now re-visit its 2013 verdict that criminalises gay sex. Deciding on a petition by five persons who say they are living in fear of being prosecuted, the top court said, “The section of people who exercise their choice should never remain in a state of fear.” A three-judge bench of Supreme Court headed by the Chief Justice of India, Dipak Misra said, “Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.”
Section 377 of the Indian legal code states, “Whoever voluntarily has carnal intercourse against the order of nature with any man, lady or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which can touch 10 years, and shall even be susceptible to fine.” merely place, Section 377 is associate degree archaic
law that was introduced throughout country era in decennary and makes gay sex a criminal offense that the social control is a life term his also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.
In 2009, the Delhi court had delineated Section 377 as a violation of the elemental rights secured by the constitution.
Religious teams, however, had appealed against the choice within the Supreme Court.
In 2013, the Supreme Court off the Delhi court order and re-criminalised sexual practice.
It aforesaid that it absolutely was the duty of the parliament to determine on scrapping laws.
The decision that gay sex could be a criminal offense was seen as a significant happening for human rights and was conjointly wide criticized.
While prosecutions beneath section 377 are rare, activists have aforesaid that the police used the law to harass and intimidate members of the LGBT community.
After the 2013 Supreme Court’s call, distinguished BJP leader Rajnath Singh had aforesaid, “We support Section 377 as a result of we tend to believe that sexual practice is associate degree unnatural act and can’t be supported.”
On the contrary, senior BJP leader Arun Jaitley had aforesaid, “When many folks the planet over area unit having different sexual preferences, it’s too late within the day to propound the view that they should be jailed.”
Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leaderDerek O’ Brien, CPI (M) leader Brinda Karat, the Aam Aadmi Party among others had come out in support of the LGBT community and had aforesaid that sexual practice ought to be decriminalized
