DECRIMINALISATION OF SECTION 377 AND ITS EFFECTS

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Section 377 of the Indian Penal Code (hereinafter referred to as the IPC) includes Homosexuality under offences with respect to the human body and under a separate heading of “Unnatural offences” and 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.

This section was introduced in 1864 and is modelled on the Buggery Act of 1533. The debate and series of events on section 377 started with the judgement of Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi in July, 2009 in which the court declared that section 377 of the IPC, insofar as it criminalizes consensual sexual acts of adults in private, violates Article 21, 14 and 15 of the Indian Constitution and hence the section 377 of the IPC was declared unconstitutional, allowing consensual sexual activity between two homosexuals above 18 years of age. The matter then went for appeal to the Supreme Court of India in Suresh Kumar Koushal & Anr. vs Naz Foundation & Ors. where Justice Singhvi stated that section 377 is a pre-constitutional legislation and if it were violative of any of the rights then the Parliament would have noticed the same and repealed the section long ago.Based on this, Justice Singhvi declared the section to be constitutionally valid and the judgement in Naz Foundation v. Govt. of NCT of Delhi was overturned by Supreme Court of India on 11 December 2013. This Judgement was supported from many religious leaders as the cultural construction of sexuality discredits any sexual activity that is ‘Non-beneficial’ of the male semen. 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”.The judgement was supported by many groups but the LGBT (Lesbians, Gay, Bisexuals, Transgender) community along with the majority of the population was against this judgement. In 2018, a five-judge Constitution bench of the Supreme Court consisting of chief justice Dipak Misra and Justice Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra and Rohinton Fali Nariman started hearing the challenge to the constitutionality of section 377 in Navtej Singh Johar & Ors. v. Union of India. The Union government did not take a position on the issue and left the decision up to the “wisdom of the Court” to decide on the constitutional validity of section 377. After hearing the petitioner’s plea for 4 days, the court reserved its verdict on July 2018 and the verdict was pronounced on 6 September 2018. The Supreme Court reversed its own judgement of Suresh Kumar Koushal & Anr. vs Naz Foundation & Ors. stating that using the section of IPC to victimize homosexuals was unconstitutional and hence a criminal act. So, the consensual sexual act between adults cannot be a crime, declaring the previous law “Irrational incomprehensible and arbitrary”. After this judgement, Navtej Singh Johar, Aman Nath, Sunil Mehra, Keshav Suri and Ritu Dalmia have become India’s Valiant Five. They were the petitioners of this case. This is a landmark judgement as everyone has the right to live with the one he/she loves, and a person’s choice of sexual interest is no business of the State to regulate on. Section 377 was completely based on traditional Judeo-Christian moral and ethical standards. Many species in animals exhibit homosexual character so how can one decide that what “Order of Nature” is and that Homosexuality in humans is going against it. There is a story behind section 377 that it was introduced because Lord Macaulay who was behind its introduction saw that the conditions of small boys in Europe were very poor. They were taken for pleasure by the kings and members of the wealthy class. Such issues do not exist in present times so; section 377 was to be scrapped. Section 377 is pre-constitutional and if any pre-constitutional law is going against any of the fundamental rights, then that law is invalid and it should be struck down as stated in Bhikaji v. State of M.P. One of the problem in section 377 was ‘Blackmail’. There are several incidents of blackmail related to this section. Moreover, the police officials were also involved in the fake lodging of complaints and there were series of police tortures with the homosexuals. Now after this landmark judgement, these malpractices will come to an end. The main problem of this judgement is its implementation. The implementation of this decision will be facing many problems like now amendment of section 375, 376 and 354 of the IPC is necessary because these sections are for women and it should now be made gender neutral otherwise mischievous interpretation of this decision might take place. There is a total possibility that in the coming future, there will be a series of Public Interest Litigations flowing in the Court of Law for this matter. After this judgement gay sex is not a crime but basic civil rights such as the right to marry or right to family or the right to adopt have not been given to them. Also, The Hindu Marriage Act or any such act defines the union between a man and a woman and there are no such laws for homosexuals which can cause a problem in the implementation of this decision. Moreover, Religious groups may form a group among themselves and then they might start working against the LGBT community in India, but as every coin has two faces, the pros are outweighing the cons. The members of the LGBT community can now live together peacefully and without any hesitation. HIV can now be tackled in a better way. In Naz Foundation v. Govt. of NCT of Delhi, National Aids Control Organisation responded on behalf of the Ministry of Health and presented evidence which showed that “the continued existence of section 377 is counter-productive to the efforts of HIV/AIDS prevention and treatment. The section makes a large number of people in high-risk categories in relation to HIV/AIDS reluctant to come forward due to the fear of Law enforcement agencies”. The only practical strategy for fighting AIDS is focusing on the most vulnerable groups like sex-workers and homosexuals. As being a sex-worker was not illegal so the government was focusing on making programmes to tackle HIV in them, but didn’t focused on Homosexuals as being a Homosexual was illegal. But now as section 377 is decriminalised so AIDS prevention campaign can now be made stronger. Decriminalisation of this section included India in the group of countries that support Human rights irrespective of sexual orientation such as UK, France, Canada, Spain, Iceland, Brazil, United States and Uruguay.

So this decision should be implemented in its beneficial aspect and it should be enacted in a proper way by taking care of all the repercussions it holds.