Law

Section 377 and Questions on Its Legality

Homosexuality has existed in India since time immemorial, as it like any other sexual orientation is inborn, but we still, in the advent of a ‘modernistic’ world in the 21st century feel awkward talking about it. We are a hypocritical nation where on one hand we talk about equal rights and liberty and on the other hand curb someone’s fundamental right under Article 14.

Throughout Hindu and Vedic texts there are many descriptions of saints, demigods, and even the Supreme Lord transcending gender norms and manifesting multiple combinations of sex and gender. Still, in our country the words ‘gay’, ‘lesbian’ and the like are still a social taboo. In a society where we still have serious impending social evils, but we still talk about the illegality of a person’s choice of sexual orientation. On a personal level if two people want to be together then I don’t see any problem with that.

One of the biggest controversies plaguing India at present is the legality of section 377 of the IPC, 1860. The legal challenge to the sodomy laws in the Indian Penal Code struggle to criminalize LGBT rights, all involving a contest over the meaning of culture.

 Defining Section 377 of the Indian Penal Code, 1860

The section is referred to as the section dealing with unnatural offences. It is the anti sodomy law In India.  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 term which may extend to ten years, and shall also be liable to fine.”

It is a misconceived notion of the people which leads them to equate sodomy with homosexuality. It is clear from a bare reading of the provision that this section does not talk about homosexuality. The interpretation of the phrase ‘against the order of nature’ does in no way invalidate homosexuality as it is a practice which has been present in the society since the inception of time, and hence it is another way of nature!

Current status

The Delhi High Court in its historic judgement on 2 July 2009 decriminalized the marriages between two consenting adults of the same sex. It was a widely controversial judgement an due to numerous appeals and agitation against it the Supreme Court of India on 11 December 2013 declared it unconstitutional once again on the ground that amending or repealing an existing statute is the responsibility of the Parliament and not the judiciary. The Supreme Court hence dismissed a Review Petition filed by Central Government, NGO Naz Foundation and several others, against its verdict on Section 377, thus, rendering same sex marriages illegal.

Reasons as to why Section 377 should be criminalized?

Even though many are of the opinion that it should not be criminalized as it is a matter of choice, debates regarding its criminalization are widespread. India as a nation is deeply conservative on sexual matters.

Firstly, the reason cited by conservationists calling themselves the true protectors of the cultural values and ethics is farfetched but at the same time exists. It is considered as a disease and religious and spiritual leaders claim to be able to cure it.

Furthermore, it is argued that same sex marriages destroy the sanctity of the marriage. Changing the natural definition of marriage would amount to a declaration that procreation is unimportant, and that children do not need a mother or father. This would inevitably lead to a further deconstruction of marriage and the family.

Why Should Section 377 be decriminalized?

It should be decriminalized as it is one’s own choice. One cannot simply burden or impose another with one’s own views just because we feel its wrong and corrupting society.

Firstly, it violates Fundamental Rights. Article 14 of the Indian constitution proposes to confer on every individual the freedom of equality. On one hand, we talk about absolute equality before the law and on the other hand, we classify homosexuals.

Apart from culture, religion, homophobia, ignorance, bigotry there is no other reason as “Why India should not legalize gay marriage”

Working International Examples

Denmark since the year 1989 has legally permitted homosexuality, but fully legalized gay marriages in 2010. The Netherlands legalized the same in 2000, Belgium in 2003, Canada in 2005, Spain in 2005, South Africa in 2006, Norway in 2009, Sweden in 2009, Iceland in 2010, Portugal in 2010, France and Brazil in 2013.

Conclusion

Consenting LGBT (Lesbians, Gays, Bisexuals and Transgender) individuals having sex are criminals in India. India has remained stuck to such an archaic piece of legislation that discriminate one group of people against another.

We need to realize that homosexuals are not asking for anything special other than that other heterosexual couples are enjoying in the society. Moreover, we cannot deny the fact that gays and lesbians exist around us and no legislation would be able to change their sexual preference or orientation, which is an inborn biological trait and not a choice.
In the end, what one must ask is if homosexuality an urge for sex, alternative sexuality, biological need or a disease to be cured?

About the Author

DSC_0179 (2)Kajal Dalal

A 3rd year student of law, she is against armchair criticism. She is a die hard feminist and is vocal about the injustice towards women. Kajal was also a part of the “I Lead India” campaign, which was a clarion call for bringing about change. She loves reading and public speaking. She completed her schooling from Sanskriti School, New Delhi and being an army kid has travelled all over the country. She has a special interest in Intellectual Property Rights and plans to pursue criminal litigation.

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