The world’s largest democracy stands proud upon pillars of equality and fundamental rights guaranteed to all by The Constitution. However, what lies beyond this is a reality that the Indian society is struggling with – a grey space between traditions and modernity. Article 377 being an example of such a provision that presently not only serves as a tool for invading the privacy of the individuals but also degrades their dignity by declaring their most intimate feelings and emotions – unnatural or better yet illegal.
According to Article 377, under the Indian Penal Code (IPC), unnatural offences state 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 imprisonment of either description for term which may extend to ten years, and also shall be liable to fine.”
This provision is older than 150 years and was introduced in the IPC by Lord Thomas Macaulay dating back to 1860. It is essential to note that this provision, implemented by the British was passed “undemocratically” in accordance to what they thought was against moral lapses as a reflection of “the British Judeo-Christian values of the time”. Furthermore, these laws were passed without discussions or participation by any “native” population. This model law was a colonial attempt to set standards of behaviour used as a broad instrument of social control, both to reform the colonized and to protect the colonizers.
Today, of more than 80 counties around the world which still criminalize consensual homosexual conduct between adult men and women, more than half were earlier colonies under the British Empire. It has proved to have started as an invaders’ impositions-an alien framework to subdue subject populations-and have morphed over time into alleged mirrors of a supposedly original native moral sense. Their real impact has been traced in all such countries wherein individuals are singled out for legal retaliation, making them victims of other forms of abuse and violence. However, countries such as New Zealand (in1986), Australia (state by state), Hong Kong (in1990, pre-China return), and Fiji (High Court ruling 2005) have managed to leave it behind.
In India, Article 377 sets stone for discrimination and exploitation of such minority community of LGBT (Lesbians Gay Bisexual Transgender), forcing them live in fear and invisibility as a result of the given power to police and other authorities to arrest, blackmail and abuse, and often only on terms of suspicion or their appearance. The law’s silence on consent translates into judges’ indifference to the victim. Another sinister effect has been to place the victims of such rape under the same legal stigma as people who engage in consensual homosexual acts – or as the rapists. Sometimes, the people who have suffered sexual abuse have confronted criminal punishments themselves.
The Indian society, wherein even heterosexuality outside marriage is looked down upon, the majority might take a long time to accept the reality of homosexuality. Herein, as Arvind Narrain notes, constitutional morality “requires the court to play the role of a counter majoritarian institution which takes upon itself the responsibility of protecting constitutionally enriched rights, regardless of what the majority may believe”. . There are voices of change in the courtrooms only because there are echoes of it in the society. There are numerous told and untold instances of suffering of the LGBT community. Furthermore, it is essential stop highlighting and proving these individuals as victims or patients of a unnatural disease – forcing them and getting them psychological help is like medically trying to prove a non-existent disease.
In 2001, the petition filed by Naz Foundation & Others asked for directives to the government ensuring access to basic necessities like shelter, food, clothes, medical facilities, education and identity documents, as well as realization of the transgender community’s right to marriage and adoption, consensual sexual conduct between same-sex remains a criminal offence under Article 377.
On 2 July, 2009, a ruling was passed by the High Court of Delhi, wherein a two judge bench consisting of Chief Justice A. P. Shah and Justice S. Muralidhar ruled that Section 377 under the IPC could no longer be used to treat consensual homosexual conduct between adult individuals as a criminal offence. The effect of this landmark Naz Foundation case was that the homosexual intercourse was no longer illegal, Section 377 would remain in the statute books and could be used to prosecute other unnatural sexual acts.
However, this judgment was further overruled by the Supreme Court of India on 11 December, 2013, upon the petition filed by individuals including Suresh Kumar Khoushal whose interest in the litigation was his “moral responsibility and duty in protecting cultural values of Indian society.”
After hearing the case at a length, The Supreme Court overruled the judgment of the Delhi High Court and upheld the constitutionality of the of Section 377. It cited reasons such as the LGBT community constituting a “miniscule fraction” of population and the infrequent usage of Section 377, having been only 200 reported judgments in the history of the law. The 98-page decision of the Court ended with one short sentence: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statue book or amend the same.”
The Supreme Court has also dismissed a Review Petition filed by Central Government, NGO Naz Foundation and several others against its verdict on Section 377. A two-judge bench comprising of Justice H. L. Dattu and Mukhopadhaya, without hearing the oral arguments dismissed the Review Petition as having no merit.
As a matter of fact, The Delhi High Court did not rule out Section 377 in its eternity at the time of judgment in 2002 only because at the time of judgment India did not have any specific laws dealing with child sexual abuses which were crucially dealt under this law. However, with the enactment of the Protection of Children from Sexual Offences Act, 2012 Section 377 has lived it’s utility.
The Parliament, who currently holds the responsibility to amend or repeal Article 377 has made no special efforts or seems to lack surety there being any future repealing of this provision. In fact, the Indian Penal Code lies under the Concurrent List which means that both Central Government and the State Government (subject to approval of the President) are competent to amend it.
Eliminating this law is a human right obligation is essential for the freedom for a part of our society from violence and fear. To develop further as a nation it is important for us value all members of the society and set an example for the rest of the world. Even if we do eradicate Article 377, and if homosexuality is for once and forever decriminalized, it would India’s LGBT community’s first concrete step towards full moral citizenship.