Decriminalization of Section 377: Reality or Facade?

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The Supreme Court’s judgment to decriminalize Section 377 of Indian Penal Code (IPC) on 6th September 2019 was embarkation of a more egalitarian society. The verdict equipped members of LGBTQ community with the sense of inclusiveness and liberated them from the societal pariah & delinquency. LGBTQ groups have suffered for over 150 years under the term “sexual minorities” and outcasts. They have been called abnormally ill, mentally challenged and danger to national security.
The judgment is the first step of the incessant fight against homophobia. The unanimous judgment by the five-judge bench has restored hope in the system and has reconfirmed that We, the citizens of India still stand together and propagate the message of social, economical and political JUSTICE, LIBERTY, EQUALITY & FRATERNITY for each and every individual in India as stated in the Preamble to the Indian Constitution. By criminalizing this dreadful law, we were snatching the right of individuals to live with dignity under the veil of social morality.
Before we dig deeper and discuss what all LGBTQ community achieved post-decriminalization of Section 377, first let’s know what this case was all about.

What is Section 377?

Section 377 of the IPC came into force more than a century and a half ago when India was still under British regime. This anarchic law was shaped as per Britain’s “Buggery Act” of 1533 and thus criminalizes “unnatural offences” as the sexual activities against the order of nature.
It states: “Whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris¬onment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Section 377 is referred to as part of toxic British legacy. In 1967, the British Parliament legislated a law called The Sexual Offences Act which decriminalized gay sex between consenting adults. It is a matter of great shame that even after 71 years of Independence and being one of the world’s largest constitutional democracies we failed to get rid of unconstitutional and unethical laws like Section 377 which were as said imposed on us by colonial government. It raises questions on the effectiveness of Indian democracy and legislation.

What was the case about & the judgment?

In 2001, a non-governmental organization called the Naaz Foundation and AIDS Bedhbhav Virodh Andolan approached the Delhi High Court demanding that homosexuality be decriminalized by striking down those portions or readings of Section 377 that made it illegal. Following which a landmark judgment was made by Delhi High Court in 2009, declaring that Section 377 is the violation of fundamental rights as guaranteed by the Constitution, “insofar as it criminalized consensual sexual acts of adults in private”.

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But the religious groups objected to this order and appealed to 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, with which it also dismissed provision of any review plea.
On August 24, 2017, the SC upheld the Right to Privacy as a fundamental right under the Constitution of India. The SC also called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine.

Post that, in January 2018, a three-member SC bench heard a petition filed by five people asking the apex court to revisit the Naaz Foundation judgment. The case was referred to a larger bench with five members who unanimously passed the recent judgment.
During the case, LGBTQ community and gender rights activists argued how Section 377 violates different articles of the Indian Constitution including Article 14 which guarantees equality before law to all individuals; Article 15 which ensures that no person is discriminated against on the basis of caste, gender, creed etc; and Article 21 which ensures the right of life and liberty to all the citizens of the country.

The judgment came in four different but concurring opinions. The five-judge Constitutional bench was led by Chief Justice of India Dipak Misra and was comprised of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra. They asserted that Section 377, as far as the aspect of criminalizing consensual homosexual sex goes, runs contradictory to the Constitution. In consequence, the court read down the provision and declared all forms of consensual sex between competent adults to be legal. This consent, the court clarified, should be free consent without any coercion.

Moreover, to answer the prevailing majoritarian view, the Supreme Court said, “The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society”.

Does this mean the LGBTQ community now has all rights of an ordinary citizen?

This can be a complicated question if dig deeper. LGBTQ community is now entitled to the full range of constitutional rights as well as the liberties protected by the constitution but still a lot is in veil. They can enjoy benefits of equal citizenship without any discrimination and will get equal protection of law as said by Justice DY Chandrachud in the judgment.
But still they can’t get married or adopt a child together, leave apart having the right to be a child’s legal guardians. The denial/ambiguity around the right of inheritance complicates their position in existing traditional family setup where they still face unacceptance. The government asked the Supreme Court to keep the judgment strictly to the issue of decriminalization; the debate on the remaining rights is still unaddressed and remains a stodgy topic for a conservative and politics centered nation like India.
“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 recognize that homosexuality is a completely natural condition, part of a range of human sexuality” was pinned in by Justice Indu Malhotra in the judgment.

Unfortunately the apology which Justice Indu Malhotra talked about is incompetent considering the atrocities LGBTQ society has been through. The wound is much deeper to be healed by such minor amendments. The members of LGBTQ have battled for over two decades to get recognized as equals by the law while the battle for acceptance by society and eradicate prejudices is still on grounds.

Through the recent judgment, Indian law bodies have initiated the process to uproot the social, cultural and legal preconception from the minds of people. Now, it’s time to take the fight forwards for remaining rights including anti-discriminatory policies at workplace. To make this move a reality and not a mere façade, we need to encourage people to come out of shadows and embrace their individuality. Justice Nariman was cognizant of this challenge and thus mandated the Union of India to give “wide publicity to the judgment” and conduct “sensitization and awareness training for government officials and in particular police officials in the light of observations contained in the judgment”.

According to Chief Justice of India Dipak Misra, “the purpose of having a constitution is to transform society” to “embrace therein” the “ideals of justice, liberty, equality and fraternity”. The authorization to transform the society in allegiance with the Constitution is a task vested in the state, the judiciary and the citizen. It is our social and moral responsibility to fight against socio-cultural vile that impedes the growth of our nation.

The current judgment not merely decriminalized the Section 377 but also gave a blow to the conformist mindset of the society. The bench tried to end the prejudices associated with gay, lesbian, transgender and bisexual people in India. It compensated for the delay by providing a permanent right to homosexuals that cannot be easily challenged or revoked.  It has fortified them for future battles for marriage and child adoption rights to bring completeness to this freedom & equality.


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