Section 377 : The law that we need but we don’t have
ABSTRACT:
Section 377 of the Indian Penal Code, which criminalizes same-s*x s*xual acts, has been a subject of intense legal and social debate in India for decades. This paper examines the historical context of the law, the legal challenges mounted against it, Its absence in BNS ( Bhartiya Nayy Sanhita) and its profound impact on LGBTQ+ individuals and communities. By tracing the trajectory of Section 377, we explore the ways in which it has marginalized and discriminated against s*xual minorities, while also highlighting the resilience and activism that have sought to dismantle it.
RESEARCH METHODOLY:
The research makes use of secondary sources of data, including journals, newspapers, websites, and so forth.
INTRODUCTION:
According to Section 377 of The Indian Penal Code: “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 descripttion for a term which may extend to ten years, and shall also be liable to fine.”
Section 377 of the Indian Penal Code (IPC) has long been a subject of intense debate and legal scrutiny. It was originally introduced in 1861 during British rule, this law criminalized "carnal intercourse against the order of nature," targeting and penalizing homos*xual activities. After India gained independence in 1947, Section 377 remained part of the IPC. This law continued to stigmatize and criminalize LGBTQ+ individuals.
BHARTIYA NYAY SANHITA (BNS) :
The Bhartiya Nyaya Sanhita (BNS) is a law intended to replace the Indian Penal Code (IPC), which was originally enacted by the British colonial government in 1860. The BNS aims to update and modernize the criminal laws of India to better reflect contemporary values and societal changes.
IPC has historically criminalized homos*xuality under Section 377, which was a colonial-era law that penalized "carnal intercourse against the order of nature." However, in a landmark judgment in 2018, the Supreme Court of India decriminalized consensual homos*xual acts between adults by striking down Section 377. This ruling was celebrated as a significant victory for LGBTQ+ rights in India.
However, despite of Parliamentary Committee’s recommendation to retain these provisions, BNS has omitted them, making the cases of rape of men, transgender individuals, and animals non-offences.
RELEVANT CASES:
1. Naz Foundation Case (2001)
In 2001, the Naz Foundation, an NGO, filed a petition in the Delhi High Court challenging the constitutionality of Section 377. They argued that the law violated fundamental rights guaranteed by the Indian Constitution, including the right to privacy, dignity, and equality.
2. Delhi High Court Judgment (2009)
In a landmark judgment in 2009, the Delhi High Court decriminalized consensual homos*xual acts between adults, ruling that Section 377 violated fundamental rights. This decision was celebrated by LGBTQ+ rights activists and marked a significant step forward.
3. Supreme Court Reversal (2013) (OVERTURNED)
In 2013, the Supreme Court of India overturned the Delhi High Court's decision, reinstating Section 377. The court stated that it was the responsibility of the legislature to amend the law, not the judiciary. This ruling was met with widespread disappointment and protests.
4. Navtej Singh Johar Case (2016-2018)
In 2016, a group of LGBTQ+ activists, including Navtej Singh Johar, filed a petition challenging Section 377. In 2018, the Supreme Court delivered a historic verdict, decriminalizing consensual homos*xual acts between adults and affirming that Section 377 violated constitutional rights.
WHAT DO WE NEED?
In spite of numerous changes , social acceptance and equal treatment for LGBTQ+ individuals there are still a lot of changes that are needed to improve and help LGBT+ individuals.
1. Provision in BNS (BHARTIYA NYAY SANHITA)
Many activists has pointed that new law need not retain Section 377, but there must be a new provision as part of the laws on rape to criminalise s*xual offences against men and transgender individuals. The present rape laws only cover rape against women. The aim is to cover this gap and make rape against all persons an offence. Therefore, a new provision criminalising rape against all persons, not just women, must be brought in. This would cover everyone who faces s*xual violence. BNS also does not talks about unnatural s*x with animals ( Bestiality).
2. Anti-Discrimination Laws
Decriminalization alone is insufficient. There is a need for comprehensive anti-discrimination legislation that protects individuals from discrimination based on s*xual orientation and gender identity in all areas of life, including employment, education, and healthcare.Legal Recognition of
3. Addressing Social Stigma
Despite legal progress, social stigma against LGBTQ+ individuals remains. Public awareness campaigns, and inclusive policies in workplaces and institutions are vital for fostering a more accepting and inclusive society.
4. Protection from hate crimes
LGBTQ+ individuals are often targets of hate crimes and violence. Laws specifically addressing hate crimes can provide better protection and ensure that perpetrators are held accountable.
5. Educational Law
LGBTQ+ students frequently experience bullying, harassment, and discrimination in educational institutions. Inclusive education laws are needed to create a safe and supportive environment for all students.
6. Gender Identity Recognition Law
Transgender individuals often face significant challenges in having their gender identity legally recognized. This lack of recognition can lead to difficulties in accessing healthcare, education, employment, and other services.
7. Health care Law
LGBTQ+ individuals often face barriers to accessing healthcare, including discrimination, lack of understanding by healthcare providers, and inadequate coverage for gender-affirming treatments.
India still lacks legal recognition for same-s*x marriages or civil unions. Legal recognition would provide same-s*x couples with essential rights and benefits, such as inheritance, adoption, and social security.
CONCLUSION:
The decision to decriminalize same-s*x s*xual acts is not only a legal milestone but also a moral and social imperative. It affirms the dignity and equality of all individuals, regardless of their s*xual orientation or gender identity. By recognizing the rights of LGBTQ+ people, India has taken a crucial step towards building a more inclusive and just society.
However, while the decriminalization of Section 377 is a landmark achievement, it is essential to acknowledge that there is still much work to be done as there must be a new provision in the new criminal code on rape to criminalise s*xual offences against men and transgender individuals as well as unnatural offences as present rape laws only cover rape against women. The aim is to cover this gap and make rape against all persons an offence.
DHRUVI NARANG
DELHI METROPOLITAN EDUCATION,NOIDAv
