By Author: Vinisha Jethwani, 4th year law student at Indian Institute of Legal Studies.
Introduction
Section 377 has been a very controversial topic lately. Section 377 has been decriminalized on the 6th of September 2018 in Navtej Singh Johar v. Union of India.
Section 377. Unnatural offenses—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.[i]
Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
This Section (Section 377) was written by Thomas Thomas Babington Macaulay around 1838 however was solely brought into impact in 1860 in light-weight of the rebellion (First War of Independence) 1857. This law in the British Asian nation was modeled on the sexual perversion Act 1533 that was enacted below the reign of King Henry VIII. This law outlined ‘buggery’ as AN unnatural sexual act against the need of God and man. Thus, this criminalized anal penetration, sex activity, and in an exceedingly broader sense sexual practice. In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, however conjointly homosexuals. This act is what’s thought to be the inspiration for Section 377 of the Indian legal code. In years to come back this Act would be repealed by the country and replaced by the Offences against the Person Act 1861. Finally sexual practice was decriminalized within the kingdom by the Sexual Offences Act1967. It’s fascinating to notice that whereas the country government has currently created a couple of legal, the Indian government still follows this archaic law written within the decade and enacted in 1860.[ii]
5 case laws that lead to decriminalizing section 377 and also the necessary changes that took place.[iii]
- Naz Foundation v. Govt. NCT Delhi
2009 Naz foundation case. Naz Foundation is an NGO which deals with HIV, AIDS, and other health issues. In this case, it was questioned that whether section 377 should be scraped out or not. The court dealt with this in two angles:
Firstly, article 21 right to life. The court said that without dignity or right to privacy no individual can enjoy the right to life article 21.[iv]
Secondly, the court discussed that the right to equality in article 14 and article 15 and said that section 377 is violative against article 14 because it is unreasonable discrimination. That is homosexuals are discriminated against as a class and criminalize consensual sex.
On the other hand, it was said that the basis of article 15 that is discriminating based on sex is prohibited. Now, this is not only dealt with biological sex but also sexual orientation. The Delhi High Court said that a part of section 377 which criminalizes homosexual acts should be declared unconstitutional and the amendment part was given/left to the parliament.
- Suresh Kumar Koushal v. Naz Foundation 2013
There were two arguments in this case:
- Homosexuality is a criminal offense and only the parliament can decriminalize it, the courts cannot interfere.
- The right to privacy cannot be extended to such that where an offense is committed. So right to privacy will not cove homosexual acts.
This judgment leads to a significant step backward for India said to the International organization. So, after the judgment in the 2009 case, the Naz Foundation case people disclosed their preferences and their identity and started to express their sexual orientation freely. But, after the 2013 judgment Suresh Kumar Koushal case these people were considered criminals and were targeted.[v]
- NALSA v. Union of India and ors. 2014
In this case, a loophole was found, that in our Indian existing laws they only focus on the binary gender male and female and not transgender. And also the transgender rights are not protected in any kind of provision. So, this is one of the reasons why the transgender community has been discriminated against.
To deal with this the Supreme Court recognized the multi-facet rights:
- Article 14 everyone’s rights are protected under article 14 men, women, and also the transgender, everyone is included.
- Article 15 and Article 16 gender-based discrimination is prohibited. So, if anyone is discriminated against on the grounds of sexual orientation then it is violative against article 15 and article 16.
- Article 19 the Supreme Court said that privacy, gender identity, integrity is protected under article 19(1)a. indirectly section 377 can be included.
- Article 21 the Supreme Court said that the right to live with dignity includes the right to choose gender identity.[vi]
In this case, self-identity and gender identity got legal recognition. Transgender rights also got included.
- Right to self-identify their gender;
- Equal treatment of all people;
- Legal recognition of gender identity men, women, transgender.
- Justice K.S Puttaswamy v. Union of India.
Puttaswamy case 2017 (privacy case) The Supreme Court affirmed that the right to privacy is our fundamental right to decide this case there was a 9judge bench. Overruled by: M.P Sharma, Kharak Singh Case. This case was authored by Justice Chandrachud and said that the Supreme Court has a responsibility to rectify the mistake in the Suresh Kumar Koushal case and also that sexual orientation is an essential attribute of privacy and this attribute is protected by the rights in part 3 article 14, article 15, article 21. That equality includes the sexual orientation of each individual is protected at an even platform. [vii]
- Navtej Singh Johar v. Union of India.
6th September 2018 decriminalized all consensual sex among adults in private, including the homosexual. Section 377 was partially declared unconstitutional. It was a 5 judge bench consisting of CJI Dipak Misra; Justice Indu Malhotra; Justice Rohinton Nariman; Justice A.M. Khanwilkar; Justice D.Y. Chandrachud. [viii]
Legal arguments
- Article 14 taking the support of article 14 the Supreme Court said that the sexual acts of two consenting adults should be criminalized because it is homosexual. This is not considered as intelligible diffrentia because it not against the order of nature; no rational nexus such traditional laws/norms should be given away which are based on morality and is too ambiguous and subjection.
- Article 15 on the context of article 15 the Supreme Court said that during Naz Foundation 2009 case the approach of the Delhi High Court that sex includes Biological Sex and sexual orientation was the correct approach and the appropriate approach shows our improved understanding.
- Article 19 supporting article 19 Justice Chandrachud said that we cannot narrowly define Human Sexuality. Discrimination under LGBTQ is unconstitutional. In the NALSA case right to expression of one’s identity and sexual orientation was legalized.
- Article 21 Supreme Court said that the right to life and liberty includes privacy, dignity, and authority.
Analysis
India may be a democratic country and in this manner the Constitution of India gives certain rights to its citizens. like Article 14, 15, 19(1)(a) and 21 which gives Right to Equality, Non-Discrimination on the grounds of confidence, race, standing, sex or spot of birth, Freedom of discourse and articulation, and Protection of life and private liberty. Be that as it may, these rights were abused by Section 377 of the Indian legal code, 1860 which condemns consensual homosexuality albeit this demonstration was decriminalized by The Supreme Court of India just in case Navtej Singh Johar v. Association of India in 2018.[ix]
Sexual movement between people of a similar sex is lawful yet same-sex couples legitimately can’t wed or acquire common association for quite a long time individuals from the local area have regularly been exposed to provocation by specialists who have frequently mishandled the currently scratched segment. Consistently another letter set is joined to the gathering that is the reason is added. It was gay first then it got characterized into L, G then B got added, at that point came T, and afterward Q (strange and intersex) the judgment covers long periods of battle by the LGBTQI + local area of India to get reasonable treatment under Indian law.
Reasons for segment 377
Numerous kid activists scrutinize the Delhi High Court judgment to decriminalize area 377 as it is should have been on the resolution book to handle instances of youngster misuse, yet after the sanctioning of insurance of kids from sexual offenses POSCO Act 2012, there is no requirement for segment 377 in kid sexual maltreatment cases. Homosexuality or different types of sex are censured as these are illegal of nature. For homosexuality, it is against the standards or models of society and religion. However, it can’t be precluded dependent on religion or standards in the public eye. A hard logical truth is that any sex other than the request for nature may cause numerous genuine ills in individuals. For instance, gay people are more inclined to explicitly communicated sicknesses like guides, and so on than any typical person.
Area 377 decriminalization may have the accompanying ramifications in India
- The Sex proportion may additionally decrease if more individuals would embrace for homosexuality.
- Students and armed force individuals may select homosexuality to eliminate pressure
An ethical wrong turns into a lawful wrong just when its results are against society and not simply the people submitting it.
Contentions against segment 377
Area 377 thwarts rights, the essential thing rights. The well known Golden triangle article 14 article 19 and article 21 is influenced contrarily by the consideration of this segment by the lawmaking body. It not just upsets the privilege to protection of an individual and yet shakes the actual establishment of the central right to uniformity. It is against humankind and correspondence. It is a common liberty to have the opportunity to pick whom we wish to wed and two willing grown-ups reserve the option to engage in sexual relations. It is against balance and heteros are permitted to wed and have intercourse however not gay people segment 377 is disregarding the privilege to security and right to life as you can’t confine the opportunity of consenting individuals to the extent their opportunity isn’t harming any other person this segment is only an instrument of abuse and it is practically unrealistic to choose what sort of sex two consenting grown-ups or people are having in private. It has been noticed that part 377 is for the most part used to bug sex laborers, and helps, HIV-influenced individuals. Any individual can be captured dependent on doubt like any two guys are holding hand while strolling out and about. Holding tight the old law is only a reaffirmation that we aren’t exactly finished with a post fair headache. It names blameless residents as lawbreakers having substitute sexuality doesn’t make individuals second rate and it unquestionably shouldn’t cause them to feel like they are accomplishing something incorrectly no one gets a kick out of the chance to be deceived as a result of what their identity is. Are love and sex awful things? we are the place where there is the Kamasutra so for what reason is it every one of the something awful in a country that highly esteems being the world’s biggest majority rule government? Men who enjoy easygoing sex with different men fall prey to coerce and dangers when they are fooled into sex and afterward thrashed except if they pay an immense measure of cash or part with significant spirits because of the disgrace that encompasses homosexuality numerous gays and lesbians wed individuals from the other gender to conciliate their relatives. This frequently prompts despondent relationships where the clueless mate is the person who is influenced the most enactment of homosexuality would not make individuals expose the unadulterated truth however it would keep them from being important for troubled orchestrated relationships and investigating the sexuality further.
As a worldwide player and non-industrial nation does India truly need to connect itself with such underdeveloped nations? On the off chance that we seek to resemble Europe or the US shouldn’t we share comparative qualities like Nepal, Japan, China, Taiwan, Thailand, and Vietnam have sanctioned homosexuality while some of them even shield individuals from the LGBT people group from segregation does India need to keep up and be a more liberal society or does it need to keep being the place where there is extremist false reverence?
The constitution of India is an incredible social record, practically progressive in its point in changing a middle age, various leveled society into a cutting edge, libertarian majority rules system. The actual reason for constitutionalism is to change society. Dynamic established translation considers the reformist Realization of rights as social orders develop we did the major right under article 15 ensures disallowance of separation on the ground of sex likewise adds weight to the contention that part 377 is against the principles of the Indian constitution. Furthermore, article 21 of the Indian constitution which says no individual will be denied of his own life or Liberty additionally presents into the account that an authoritative plan that objectives gay people for what they do in their private lives may against what the Indian constitution imagines.
Conclusion
Though section 377 has been decriminalized it does go against the natural law. Noticing that section 377 has been decriminalized but not been amended or there are no amendments in the marriage act. Marriage for homosexuals has not been decriminalized. The legalization of section 377 does not give the right to marriage, it is completely against the natural law. You are free to practice it but not become a part of it in the future. Looking at the natural law in simple words a man and women come together to procreate children and their relationship is considered as a sacrament. The natural law directly itself says that it is a man and woman and not homosexuals. Though section 377 has become a part of the fundamental rights to the right to choose, right to gender identity as explained above, it is an individual who chooses its feelings and requirements to some extent section 377 has not been accepted to the whole. Choosing your identity, your gender is all a part of your fundamental rights and now has been legalized. Compared to other countries the LGBTQ committee has and will be facing problems for their acceptance in the future. In other countries, The LGBTQ committee is accepted and has become a part of the gender whereas, in India, the LGBTQ committee is and will face problems.
References
[i] https://indiankanoon.org/doc/1836974/
[ii] www.timesnownews.com
[iii] https://www.youtube.com/watch?v=1GGsUFrcuQY
[iv] https://www.escr-net.org/caselaw/2009/naz-foundation-v-government-nct-new-delhi-and-others-wpc-no-74552001
[v] https://indiankanoon.org/doc/58730926/
[vi] https://indiankanoon.org/doc/193543132/
[vii] https://indiankanoon.org/doc/127517806/
[viii] https://www.scobserver.in/court-case/section-377-case
[ix] https://www.lawyersclubindia.com/articles/critical-analysis-of-the-decriminalized-section-377-9436.asp
