Posted by Shreya Bansal
Section 377 of the IPC that came into force in 1862 defines ‘unnatural offences’. The law states, 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 10 years, and shall also be liable to fine.In addition it also mentions that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
In 2009, a PIL filed by Naz foundation, a Delhi based NGO fighting for the rights of the LGBTQ community led to the series of events wherein the high court on July 3rd struck down section 377 on the grounds that it violated and denied the fundamental right to life and liberty and the right to equality, as guaranteed to individuals by the constitution. The HC bench held that
“Section 377 of the IPC, in so far as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to equality before law) and Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth] of the Constitution”
It was thus concluded that the law by criminalising homosexuality, directly impacts and isolates the members of the LGBTQ community as it discriminates citizens primarily on the basis of sexuality and fundamentally denies a section of the society equality.
The landmark decision of the HC restored a sense of confidence in our legal system for many Indian citizens, especially those who identify as a part of the community as they were finally backed by basic fundamental rights and legal structures in a very long time.
However, the constitutional backing was short lived as the supreme court reversed the decision of the high court in 2013 as it held that unnatural sex as defined under section 377 of IPC and homosexuality is illegal and will continue to be an offence.
While the HC judgment of 2009 provided confidence and hope to a community that has been subjugated for an immense amount of time, the reverse judgment of the supreme court in criminalising homosexuality and consensual sex between two adults provides a stronger backing and support to a preexisting regressive, majoritarian thought process. Therefore worsening the legal and societal conditions under which LGBTQ individuals have been living in this nation.
Since then, LGBTQ activists including various NGOs, individuals, leaders have been fighting for the rights and representation of the community in Indian politics and law. The recent judgment of 2017 in which the apex court made right to privacy a fundamental right and also conclusively suggested that personal intimacy and sexual orientation played a huge role in that privacy.
On Monday, January 8, 2018 the supreme court decided to reexamine the constitutional validity of section 377. It said
“A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under Art 21 of Constitution”
It was also pointed out that living in the absence of a coherent legal structure has made the members of the community vulnerable to legal authorities and many a times a subject to the discrimination and violence of the police.
In the course of the history of section 377 in India, the ability of our law to serve a democracy in a way that legal aid and support is easily accessible and available to each and every individual has been continuously tested. Whether something as personal as an individual’s sexuality can be scrutinized and contested upon by the law and authorities, is a question being raised for a long time now. However, the need of the hour is to provide immediate protection to the members of the community from the legal structure that is required to serve them.
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Featured image source: Hindustan Times