Critical Analysis of the Decriminalized Section 377

In a landmark verdict, on 6 September 2018, the Hon’ble Supreme Court of India decriminalized homosexuality by declaring Section 377 of the Indian Penal Code is unconstitutional. The Apex Court unanimously ruled that individual autonomy, intimacy and identity are protected fundamental rights and scrapped the controversial Section 377 of IPC- a 158-year-old colonial law on consensual gay sex. The Supreme Court reversed its own decision and scrapped section 377 of IPC that criminalized homosexuality and opined that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary. But Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.

A bunch of petitions was filed by individuals and organizations seeking to scrap the 19th century law. A larger bench comprised of Chief Justice Mr. Dipak Misra and Justices Mr. DY Chandrachud, Mr. AM Khanwilkar, Ms. Indu Malhotra, and Mr. Rohinton Fali Nariman, in separate but concurring judgments, ruled that India’s LGBT+ community has the same sexual rights as everyone else.

Section 377: Unnatural offences.

Homosexuality was punishable by death in England in the 1800s and they imposed their Victorian values over us in the second half of 1800s. Section 377 of the Indian Penal Code was introduced in 1860 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". Lacking precise definition, Section 377 became subject to varied judicial interpretations over the years.  Section 377 banned the acts of homosexuality as well as some act of heterosexuality which are not natural viz., anal or oral sex.

The section 377 reads as follows

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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

What this means is that any form of carnal intercourse which is more commonly known as penetrative sex other than vaginal penetration is a criminal offence regardless of the fact that there is mutual consent between the two adults involved and regardless of the fact that the adults involved are heterosexuals or members of the LGBT community. As long as it is “against the order of nature”, it is illegal and the minimum punishment is 10 years of imprisonment.

LGBT + Community

Lesbian, gay, bisexual, transgender (LGBT) people in India face legal and social difficulties not experienced by non-LGBT persons. Sexual activity between persons of the same gender is legal but same-sex couples legally cannot marry or obtain civil partnership. For years, members of the community have frequently been subjected to harassment by authorities who have often abused the now scrapped section. Every year a new alphabet is joined to the group that’s why + is added. It was Homosexual first, then it got classified into L & G, then B got added, then came T and then Q and I (queer and intersex). The judgment caps years of struggle by the LGBTQI+ community of India to get fair treatment under Indian law.

Reasons in favour 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 criticized as these are against the law of nature.

Further homosexuality is against the norms or morals of society and religion. But it can’t be prohibited on the basis of religion or norms in society.

A hard scientific truth is that any sex other than the order of nature may cause many serious ills in 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 opt for homosexuality to remove stress.

A moral wrong becomes a legal wrong only when it’s consequences are against society and not just the person/s committing it.

Arguments against Section 377

Section 377 hinders rights, the basic fundamental rights. The famous golden triangle (Article 14, Article 19 and Article 21) is affected in a negative way by the inclusion of this section by the legislature. It not only hinders right to privacy of an individual but at the same time shakes the very foundation of the fundamental right to equality.

It is against humanity and equality. It is our human right to have the freedom to choose whom we wish to marry and two willing adults have the right to have sex.

It is against equality as heterosexuals are allowed to marry and have sex but not homosexuals.

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 two 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 basis of suspicion like any two males are holding their hands while walking on the road.

Britishers, who had imposed this inhuman provision on people of India, have removed this kind of provision from their law. 

Hanging on to the archaic law is just a reaffirmation that we aren't quite done with our post colonial hangover.

It labels innocent citizens as criminals

Having an alternate sexuality does not make people inferior and it definitely shouldn't make them feel like they are doing something wrong. Nobody likes to be victimised just because of who they are.

Are love and sex bad things? we are the land of the Kamasutra. So why is it all a bad thing in a country that prides itself in being the world's largest democracy?.

Men who indulge in casual sex with other men fall prey to blackmail and threats when they are tricked into sex and then beaten up unless they pay a huge amount of money or give away valuables.

Due to the stigma that surrounds homosexuality many gays and lesbians marry members of the opposite sex to appease their family members. This often leads to unhappy marriages where the unsuspecting spouse is the one who is affected the most.

Legalisation of homosexuality would not make people come out of the closet but it would prevent them from being part of unhappy arranged marriages and exploring their sexuality further.

As a global player and a developing country, does India really want to associate itself with such Third World countries? If we aspire to be like Europe or the US, shouldn't we share similar values?

Nepal, Japan, China, Taiwan, Thailand and Vietnam have legalised homosexuality while some of them even protect members of the LGBT community from discrimination.

Does India want to keep up and be a more liberal society or does it want to continue being the land of bigoted hypocrisy?.

International Developments

There have been many positive developments in favor of Lesbian, Gay, Bisexual and Transgender (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 to a national level by popular vote.

In June 2015, the US Supreme Court ruled that same sex marriage were legal. Near home, Nepal legalized 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-criminalized 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.

India till recent past stood with a host of countries such as Nigeria, Ghana, Iran, Saudi Arabia, Afghanistan, Mauritania, Qatar and Pakistan which criminalizes homosexuality.

Chronological legal battle against 377 of IPC

2001 : Naz Foundation, a non-governmental organization fighting for gay rights, files public interest litigation in the Delhi high court, seeking legalization of gay sex among consenting adults.

2004 September: The high court dismisses the PIL seeking de-criminalization of gay sex. Gay right activists file review petition.

2004 November 3: HC dismisses the review plea.

2004 December: Gay rights activists approach SC against HC order.

2006 April 3: SC remands the case back to the Delhi HC, directs it to reconsider the matter on merit.

2006 October 4: The high court allows senior BJP leader B P Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.

2008 September 18: The Centre seeks more time to take a stand on the issue after contradictory stands between the ministries of home affairs and health over the decriminalization of homosexuality. HC refuses the plea and final argument in the case begins.

2008 September 25: Gay rights activists contend that the government cannot infringe upon their fundamental right to equality by criminalizing homosexual acts on the ground of morality.

2008 September 26: HC pulls up the Centre for speaking in two voices on homosexuality law in view of contradictory affidavits filed by the MHA and health ministry.

2008 September 26: The Centre says gay sex is immoral and a reflection of a perverse mind and its decriminalization would lead to moral degradation of society.

2008 October 15: HC pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

2008 November: The government in its written submission before HC says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.

2008 November 7: HC reserves verdict on pleas filed by gay rights activists seeking decriminalization of homosexual acts.

Additional Solicitor General PP Malhotra said: "Homosexuality is a social vice and the state has the power to contain it. Decriminalizing homosexuality may create a breach of peace. If it is allowed then the evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." This view was shared by the Home Ministry.

2009 July 2: HC allows plea of gay rights activists and legalises sexual activity among consenting adults of same sex.

2009 July 9: Several personss - including BJP leader Singhal (since dead), religious organisations, rights activists and yoga guru Ramdev’s disciple - also oppose the judgement.

2012 February 15: SC begins final day-to-day hearing in the case.

2012 Mar 27: SC reserves verdict.

2013 Dec 11: Supreme Court De 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 endeavour to remove such controversial provisions form statue books of India.

2013 Dec 20: The Centre files review petition in the SC seeking re-examination of its verdict.

2013 Dec 24: Gay rights activists file review petition in the SC seeking re-examination of its verdict.

2014 Jan 28: SC refuses to review its verdict on criminalising gay sex, dismisses pleas of Centre, activists.

In 2014, Supreme Court directed government to declare transgender as 'third gender' and to be given reservation under OBC quota.  

2014 Apr 3: SC agrees to consider for an open court hearing on curative petitions filed by gay rights activists against its verdict criminalising homosexuality.

2016 Feb 2: SC refers curative pleas on homosexuality to five-judge bench.

On 8 January 2018, the Supreme Court then referred Section 377 to a larger bench of the court putting on record that it’s 2013 decision requires reconsideration.

2017 : The SC in the right to privacy verdict gave a boost to the possible decriminalisation of section 377 and said “ Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

2018 July 10: A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, begins hearing petitions challenging Section 377.

The Centre argued that they leave the issue to the wisdom of the court to examine the constitutional validity of Section 377, but said that if the right to choose a sex partner was recognised as a fundamental right, then somebody may come up and say that he or she wanted to marry a sibling, which would be contrary to the laws governing marriages.

2018 July 11: The Supreme Court said the right to sexual orientation is not a fundamental right but indicated that the right to choose a sexual partner is a fundamental right.

2018 September 6: The court has, finally, struck down Section 377 because it violates Articles 14, 15, 19, and 21 of the Constitution. Performing its classic function of judicial review, the court has struck down Section 377 as being violative of Articles 14 and 15.

Justice Nariman has rightly begun Johar’s equality analysis with the landmark judgment, Anuj Garg v Hotel Association of India, where Justice SB Sinha emphasised the need for dynamic constitutional interpretation in cases concerning gender equality. Justices Misra and Khanwilkar found that Section 377 has no constitutionally valid object inasmuch as non-consensual acts criminalised under Section 377 have already been made penal offences under Section 375 IPC. They have also found Section 377 IPC to be arbitrary because it criminalises sexual acts between adults who are competent to give their consent, and puts undue limitations on their liberty.

Crucially, Justices DY Chandrachud and Indu Malhotra, in their concurring opinions, have also found that Section 377 violates Article 15’s prohibition against sex discrimination, specifically noting that “sex” under Article 15 includes “sexual orientation”.

Justice Malhotra has noted that relationships between same-sex couples have been accorded protection across the world. Chief Justice Misra has protected the LGBT community’s “right to companionship” under Article 21 of the Constitution, in a passage worth quoting in its entirety: “There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”

"LGBT Community has same rights as of any ordinary citizen. Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution. Criminalising gay sex is irrational and indefensible," …“We don’t settle constitutional issues by referendum. We don’t follow majoritarian morality, but follow constitutional morality.” …“Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, and freedom of speech and other expressions.” CJI Dipak Misra.

Justice Khanwilkar, “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.”

Conclusion

According to the University of Oslo, homosexuality exists in over 1500 animal species, so why is it so "unnatural" for humans?. Sexual orientation is a natural phenomenon determined by biology and science. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights. Only Constitutional morality and not social morality can be allowed to permeate rule of law.

We still live in times where the character of a woman is judged based on what she wears. Politicians can dare to make comments like “Boys will be Boys” and still continue to receive huge public support. Up until now we had a famous temple which wouldn’t allow menstruating women to enter the Sanctum Sanctorum because they were considered impure. I am not generalizing but these things exist in large parts of our society. What we need is a social revolution which aims at removal of these sexist and hypocritical beliefs of the society. 

The Constitution of India is a great social document, almost revolutionary in its aim in transforming a medieval, hierarchical society into a modern, egalitarian democracy. The very purpose of constitutionalism is to transform society. Dynamic constitutional interpretation allows for the progressive realisation of rights as societies evolve. The fundamental right under Article 15, guarantees “prohibition of discrimination” on the ground of sex also adds weight to the argument that Section 377 is against the tenets of the Indian Constitution. Additionally, Article 21 of the Indian constitution which says “NO PERSON shall be deprived of his personal life or liberty” also pours into the narrative that a legislative agenda that targets homosexuals for what they do in their private lives may against what the Indian Constitution envisions.

India is rapidly changing. We are thriving in almost all the fields. Everyday there are happenings which make us proud and they certainly are more than ugly events occurring in our country. No matter how much we improve on ourselves and it really doesn’t matter unless the ground reality changes.

There is a famous saying, “I am divine so are you,” which vividly explains about the sexualities and their rights. It beautifully explains that the individuality of an individual is Prime and it should be respected.

It is a sad reality that our society at large treats LGBTQI community as untouchables or not part of the society, which as per me is blatantly wrong. They are humans and they also have a right to live as who they are. We as Indians need to stop treating them as outcaste and respect their way of life. This landmark judgement has marked history by uplifting and keeping the rights of LGBTQI uptight. There are no laws protecting gays and lesbians from discrimination at the work place or laws that allow them to marry their partner of choice. The apex court judgement opens a window of acceptance and achievement for the LGBT community.

There is no harm in abolishing section 377. People should welcome it and accept the change because it make us more tolerant, happy and after all less populated. Personal preferences are your matter of choice. But as an Indian I don’t see any harm (rather it is good) in accepting LGBT people as my fellow citizens. We have now become civilized enough to understand how important equality is. Everybody should be allowed to love. Love is equal. How would you feel if judges were deciding whether your private life was legal or not? It's time for the constitution to get the hell out of people's bedrooms and stop targeting the love lives of a minority.

India is the greatest democracy and a mixture of several religions, caste, creed, sex and ethnicity. Let us all respect it and embrace it because this is all which matters. “To love and to be loved, should be an Individual Rights.” This Historical judgment articulates a vision of constitutional supremacy that will guide Indian democracy well into the future. It protects LGBT citizens under the right to equality, along with privacy and dignity.