Article

Journey of Section 377 (till 2018)

by Shruti-Gupta
May 22, 2019 14:45

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Journey of Section 377

In recent years, one of the very common things are “Section - 377 of the Indian Penal Code” talks. The verdict of 2018, arousing conflicts between thoughts and people, forming different groups and the countless speeches and protest. All this was for an amendment that was needed. It is a section of the Indian Penal Code which was introduced in 1864 during the British rule of India. Modelled on the Buggery Act of 1533, it is used to criminalize sexual activities "against the order of nature". It states that “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.” This is termed as the unnatural offence.

First Petition :- The first petition filed against section 377 was in 1994 by “AIDS Bhedbhav Virodhi Andholan". This was to support a UN and NAAC project about HIV Aids and STDs but the court had purely rejected it without any hearing due to lack of strong data on the issue.

Second Encounter :- Portions of the section were first struck down as unconstitutional with respect to gay sex by the Delhi High Court in July 2009. This issue was led by the Naz Foundation (India) Trust, an activist group, who filed a public interest litigation in the Delhi High Court in 2001, seeking legalization of homosexual intercourse between consenting adults. That judgement was overturned by the Supreme Court of India (SC) on 11 December 2013 in Suresh Koushal Vs Naz foundation. The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary.

Supreme Court Happenings :- On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark “Puttuswamy judgement”. The Court also called for equality and condemned discrimination, stated 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. This judgement was believed to imply the unconstitutionality of section 377.

In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment. On 6 September 2018, the Court ruled unanimously in Navtej Singh Johar Vs Union of India that Section 377 was unconstitutional "in so far as it criminalizes consensual sexual conduct between adults of the same sex".

Right to Privacy :- On 24 August 2017, the Supreme Court of India held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian Constitution. The judgement mentioned Section 377 as a "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy." In the judgement delivered by the 9-judge bench, Justice Chandrachud, held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect, and the judges clearly expressed their disagreement with it. Most of them agreed that the right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. He further went on to state that the majoritarian concept does not apply to Constitutional rights and the courts are often called upon to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India.

Towards the End :- On 6 September 2018, the Supreme Court of India decided to announce that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary", but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality. On February 2016, a three-member bench of the court reviewed curative petitions submitted by the Naz Foundation and others, and decided that they would be reviewed by a five-member constitutional bench.

Final Verdict (2018) :- Consensual adult gay sex is not a crime and article 14 and 21 of Indian Constitution contradict the present view of Section 377.

Politicians In Support :- During the years of proceedings, the politicians have been commenting on the facts of the case( as usual). Few people were in support of the section 377 and against the demands of LGBT community. Few of them are listed below:

The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each other’s religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgement."
Baba Ramdev, India's well-known yoga guru, after praying that journalists not "turn homosexual", stated he could "cure" homosexuality through yoga and called it "a bad addiction”.
The Vishwa Hindu Parishad's vice-president Om Prakash Singhal said, “This is a right decision, we welcome it. Homosexuality is against Indian culture, against nature and against science. We are regressing, going back to when we were almost like animals. .
Maulana Madni of the Jamiat Ulema echoes this in the article, stating that homosexuality is crime, unnatural and they should consider themselves excluded from the society.
In a society, a family is made up of a man and a woman, not a woman and a woman, or a man and a man.” Rabbi, honorary secretary of the Judah Hyam Synagogue, in upholding the judgment was also quoted as saying “In Judaism, our scriptures do not permit homosexuality."

Criticism :- As always there was a good side and a bad side, few people were in support of the LGBT community and against the Section 377. Few such name’s and statements are mentioned below:

The Ministry of health and family welfare upholding of Section 377, stating that it would hinder anti-HIV/AIDS efforts.
According to NCRB, in 2015, 1,491 people were arrested under Section 377, including 207 minors (14%) and 16 women.
The People’s Union for Civil Liberties has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals in India.
The United States said that the ban violates international law. United Nations human rights chief Navi Pillay stated that "Criminalizing private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified", and that the decision "represents a significant step backwards for India and a blow for human rights.", voicing hope that the Court might exercise its review procedure.

Common Opinion :- For the individuals of the LGBT community, the time span of these years was really disheartening, full of suffering and disgrace. The society wasn’t accepting them, they were treated as minors who have no voice of there own. When asked, an associate of the community said that “ It was really disheartening, when the court stated that queer is miniscule minority and constitution can’t be restructured for such small community. Every citizen has equal rights then why not queers?”

Pride Day of India :- September 6th, 2018 was celebrated as the “Pride day of India” as that’s the day when the queers of India had attained freedom.

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