The Right to love: on Section 377 verdict
The Supreme Court on 6 September, 2018 has pronounced its much-awaited verdict on a clutch of petitions challenging the constitutional validity of section 377 of the IPC which criminalises consensual gay sex.
In the case: Navtej Singh Johar v. Union of India.
The verdict and its significance:
A five-judge Constitution bench of the Supreme Court unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC, which criminalises consensual unnatural sex, prompting joyous tears, hugs and dancing across the country.
The judgement is based on the interpretation of Article 14 (Right to Equality); Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth); Article 19 (Freedom of Speech and Expression); and Article 21 (Right to Life and Right to Privacy) of the Indian Constitution.
However, bestiality will continue as an offence. Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC.
What does this mean?
- Society cannot dictate a sexual relationship between consenting adults.
- The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfillment in human relationships have a universal appeal and the state has no business to intrude into these personal matters.
- The guarantee of equality at its heart was the guarantee of equal citizenship. The criminalizing ambit of Section 377 violated this guarantee as it “singles out people, by their private choices” and “marks them as less than citizens— as or less than human”.
Homosexuality is considered a taboo in a largely conservative Indian society which appears to be divided on the controversial issue.
In 1861 Section 377 was introduced by the British Raj. The section was drafted in 1838 by Thomas Macaulay and was brought into effect in 1860. It was modelled on the Buggery Act of 1533 and it states ‘buggery’ is an unnatural sex act which goes against nature, God and man’s will. The act criminalises anal penetration, bestiality, and homosexuality.
Freedom loving people (not necessarily belonging to Lesbian, Gay, Bisexual and Transgender or LGBT community) want homosexuality de-criminalised but many still consider it a “deviant behavior” and not merely a question of one’s sexual orientation or preference.
There have been many positive developments in favour of LGBT community on the international front. In May 2015, Ireland legalized same-sex marriage. The country which had decriminalized homosexuality in 1993 became the first country to allow same sex marriage a national level by popular vote.
- In June 2015, the US Supreme Court ruled that same sex marriages were legal. Near India, Nepal legalised homosexuality in 2007 and the new Constitution of the country too gives many rights to the LGBT community.
- France, UK, Canada, United States, Australia and Brazil have de-criminalised homosexuality. Other countries like Belgium, Brazil, Canada,France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain, Sweden and Uruguay allow either same sex marriage or a civil union.
Section 377 of IPC:
- Section 377 of the IPC 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 ten years, and shall also be liable to fine.”
- The first petition to get rid of Section 377 was filed in the Delhi Court in 2009 by Naz Foundation, an NGO that works for LGBTQ rights. It stated that the section violates the fundamental rights of the LGBTQ community. Section 377 has a “chilling effect” on the right of equality, liberty, life, dignity and non-discrimination on the ground of sex – it violates the following fundamental rights as claimed by the petitioners:
Article 14 – Right to equality
Article 15 – Prohibition of Discrimination
Article 21 – Right to Life and Personal Liberty
Article 19 (1)(a) – Freedom of Expression
- In 2013, Supreme Court criminalizes the homosexuality by reversing the judgment of Delhi HC and upholding the constitutional validity of section 377. Further SC says that it is the work of parliament to make or amend the legislation and parliament shall make endeavor to remove such controversial provisions form statue books of India.
Reasons in favor of section 377 :
- Many child activists criticize Delhi HC judgment to decriminalize section 377 as it is needed to be on the statute book to tackle cases of child abuse. But after enactment of Protection of Children from Sexual Offences (POCSO) Act 2012, there is no need of section 377 in child sexual abuse cases.
- Homosexuality or other forms of sex are criticizes as these are against the law of nature.
- Further homosexuality is against the norms or morals of society and religion. But nothing can be prohibited on the basis of religion or norms prevalent in society.
- A hard scientific truth is that any sex other than natural cause of many serious ills in the human beings. For example homosexuals are more prone to sexual transmitted diseases like AIDS etc than any normal person.
- Section 377 decriminalization may have following implications in India:
– Sex ratio may further decline if more people would adopt for homosexuality.
– Students and Army people might oppted for homosexuality to remove stress.
- A moral wrong becomes a legal wrong only when its consequences are for society and not just the person/s committing it.
Arguments against Section 377:
- Section 377 is in violation of Right to Privacy and Right to Life as you can’t restrict the freedom of consenting people as far as their freedom is not hurting anyone else.
- This section is just an instrument of exploitation and it is almost not possible to decide what type of sex 2 consenting individuals are having in private. It has been noted that section 377 is mostly used to harass sex workers and AIDS/HIV affected people.
- Any person can be arrested on the base of suspicion like any two males are holding their hands while walking on the road.
- British’s, who had imposed this inhuman provision on people of India, has removed this kind of provision from their law.
Transformative constitutionalism: Indian constitution ought to adapt and transform with the changing needs of the times. The very purpose of constitutionalism is to transform society. Dynamic constitutional interpretation allows for the progressive realization of rights as societies evolve, and is also essential to enable transformative constitutionalism.
Decriminalising homosexuality may not remove the social stigma around it: Law and morality are different issues. Our legislators may frame laws or courts deliver judgments that are ahead of the moral values of a society. But it would be farfetched to expect that moral values can be changed because of court judgments.
Battling the stigma: While this decision by the country’s highest court is certainly significant, there needs to be more of an impetus for social change and removing ignorance from society. There needs to be a campaign to not only to raise awareness but to educate people on what homosexuality is. The government should conduct programmes to end the stigma around homosexuality and individuals employed with the government should receive workshops to sensitise them to subject.
Rape law reforms for male survivors: There is a need for rape law reform to protect male survivors of sexual violence. There is no law to protect adult male victims of sexual assault, whether they are cis- or transgender. Parliament needs to fill these lacunae in the law.