Section 377 Verdict: the Struggle towards Another Day of Independence
“Consensual sex between adults in private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles,” said the apex court, as it made a historic move by scrapping parts of Section 377, thus decriminalising homosexuality and consensual sex in all form, on September 9, 2018. The landmark judgement was delivered unanimously by a five-judge bench formed by the Chief Justice of India (CJI) Dipak Misra and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
The Manipal Journal, in relation to this, delves deep into the history, its effects on a major community, and the hindrances faced in scrapping this section.
What is Section 377?
The homosexual community in India has long lived in shadows due to Section 377, that dealt with ‘unnatural offences’, stating 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 with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Brought into force in the year 1872, the section has been understood to criminalise homosexuality as well as all ‘unnatural’ sexual acts such as oral and anal sex between partners of any orientation.
“It (Section 377) offers a legal basis to suppress alternate sexuality,” stated Krishnan Venugopal, senior advocate in the Supreme Court.
Struggles of The Community
Evidence in form of historical texts and scriptures has suggested that homosexuals and transgenders have existed for centuries. Despite this, the community has been a target of many hate crimes and discrimination, without any support from the judiciary, and have been hailed as criminals. A 2014 report published by the New York Times indicated that in the present times, people of the LGBT community is twice as likely to be targeted as African-Americans, and the rate of hate crimes against them have surpassed that of crimes against Jews. In India, multiple instances have been reported where they have been harassed, like the recent case of physical and verbal assault by Delhi Police directed towards a gay man on June 6, 2018 in Delhi’s Hauz Khas Village. These policemen usually face no consequences for they have section 377 empowering them to take whatever action they see fit to uphold the law.
“We do not want a situation where two homosexuals enjoying a walk on Marine Drive should be disturbed by the police and charged under Section 377,” stated the Supreme Court bench.
Despite the increasing support for the community, a stigma still exists in the society regarding homosexuality. This stigma has also been regarded as one of the major reasons why the government has turned a blind eye towards the issue for long.
Cases of hate crimes and discrimination against members of the LGBT community have come to fore from the public and the influential political leaders alike, calling it a psychological problem or a sin. The current Chief Minister of Uttar Pradesh, Yogi Adityanath, openly spoke in favour of section 377, calling homosexuality unnatural and unacceptable. He even went on to label homosexuality as ‘aprakritik’ (unnatural) even though one of the sacred texts of Hinduism, the Rigaveda, says ‘Vikriti Evam Prakriti’ meaning ‘What seems unnatural is also natural’.
“Constitutional morality has to overtake social perception. Don’t blame the society because we all have grown up with this provision in the statute,” said senior lawyer, Mukul Rohtaagi, former Attorney General, representative of some petitioners against Section 377.
As mentioned before, most of the politicians have been either opposing homosexuality or have remained tight-lipped over the issue. Recently, Shashi Tharoor had made a third attempt (first one being in the year 2015 followed by another in the year 2016) to decriminalise homosexuality. He proposed an amendment that if implied, would have made homosexuality punishable only if it was proven as rape. Sadly, the issue was not even taken up for debate in the parliament. Earlier Shashi Tharoor had tried to scrap Section 377, but was greeted with underwhelming response, with his 2016 proposition being supported by a mere 14 members of the total of 552 Lok Sabha members.
There is also a fear of violence and unrest in certain sensitive northern states such as Bihar, Haryana, and Uttar Pradesh, now that homosexuality is decriminalised. The ruling Bhartiya Janata Party (BJP) did not take any clear stance upon the case. In 2013, when section 377 was upheld by the SC, BJP spokesperson Nirmala Sitharam said that the Party supported the Supreme Court ruling, but only because it allowed the legislators to amend and make laws. Upon being asked about their stance on homosexuality, Sitharam said, “There has to be a lot of deliberation before a decision is made.” Even after 5 years, there has been no official announcement by the party.
“It (Section 377) is a violation of Article 15 because the discrimination revolves around the sex of the partner. It is based on Victorian morality that people should have sex only with opposite gender since sex is only for procreation,” said advocate Menaka Guruswamy.
The Current Situation
CJI Deepak Mishra on July 11 had said, “We intend to rule, subject to arguments, that two consenting adults even if engaged in ‘unnatural sex’ will not be liable for prosecution for any offence.” Further fuelling the optimism of the LGBT community, on July 12, Justice Indu Malhotra said that “(Homosexuality) is not an aberration, but a variation.” She further added that, “Because of family pressures and societal pressures, they are forced to marry the opposite sex and it leads to bi-sexuality and other mental trauma.”
Moreover, the biggest boost had been the reduction in amount of resistance as compared to earlier times. The All India Muslim Personal Law Board (AIMPLB) had said that it would not challenge the verdict of the court in the matter, as senior advocate Yusuf Muchhala commented, “We are not going to appear in the matter, leaving it to the court to decide.” He further added, “Whether section 377 is unconstitutional or not should be read down by the court so that the people indulging in same-sex relationships are not criminalised.”
Taking a diplomatic stance, the centre had left the decision on the ‘wisdom of the court’ with additional Solicitor-General Tushar Mehta saying that the Centre will not contest provision about consensual sex between adults, seeking clarification only on bestiality.
The Indian Psychiatric Society (IPS), took a stand in support of the community , asserting that same sex sexuality is just a ‘normal variant of human sexuality much like heterosexuality and bisexuality’. A statement from the recently published report by IPS which declared that homosexuality is not a mental illness said, “The Indian Psychiatric Society further supports decriminalisation of homosexual behaviour.”
Shashi Tharoor, who has been an avid supporter of LGBT rights and has formerly tried to decriminalise it, tweeted, “So pleased to learn that the Supreme Court has ruled against criminalising sexual acts in private. This decision vindicates my stand on Section 377 on exactly the same grounds of privacy, dignity and constitutional freedoms. It shames those BJP MPs who vociferously opposed me in LS (Lok Sabha).”
“Punishment under Section 377 made the LGBT a closeted community, destroyed the identity of members and reached their dignity, all part of right to life. The state has no business to get into controlling the private lives of LGBT community members or for that matter that if any citizen,” commented Justice Chandrachud.
With this ruling, the Supreme Court has given freedom to an entire community that was facing discrimination on a daily basis. With this step, the judiciary has restored the fundamental rights of many, giving them a chance to be their true self and love openly without any legal restrictions.
Featured Image Courtesy: Tamanna Wadehra
Edited by: Drishti Sanyal