How Did The Story Of Section 377 Unfold



History is witness to the heavy oppressive practices, discrimination and social difficulties against Lesbian, gay, bisexual and transgender, who are otherwise collectively known as the LGBTQ. This bias was only fuelled more in India under the British reign. It was during that period when section 377 got introduced in the IPC which criminalized sexual acts (oral sex and anal sex) among people in the country. 

If one looks into the pre-colonial history of India, it wasn't fully normalized at that period, but it was clearly present as is shown in many scriptures and evidence belonging to that period of time which contains several depictions of same-sex relations. 

The Act 

The discrimination towards the LGBTQ community didn't exactly commence with the introduction of section 377 of IPC forced into action in 1862 per se, but it certainly came to it later in the future. Section 377 of the Indian Penal Code criminalized consensual private sexual acts between adults regardless of their sexuality, i.e., it extended to the transgenders, homosexuals, and heterosexuals. 

The penal provision dictated – "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be threatened imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be responsible by law to fine.” In short, it criminalized sexual acts between two consenting adults who may or may not be homosexual.


Challenges Posed To It 

It remained in action until 2009, when the Delhi High Court reduced Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors. This was result of the effort which was brought into light in 2001 when a sexual health NGO, the Naz Foundation, working with gay men, filed a public interest litigation (otherwise known as PIL) in the Delhi high court, challenging the constitutionality of section 377 and raising a demand for the legalization of homosexuality.

 In 2004, the case got dismissed, claiming the lack of cause of action behind the allegation made. In 2008, the case was filed again and this time it cited that it was an issue of public interest. The petition gained the support of many NGOs that stood for the decriminalization of homosexuality. 





Subsequent Judgments 

Moved by the cause of action, the Delhi High Court finally decided to strike down the penal code, saying it violated the fundamental rights to life, freedom, and equality that were enshrined in the Indian constitution.
What appeared like the beginning of the peace ended up being a mere sign of the calm before the storm. When Critics, including a Delhi-based astrologer Suresh Kumar Kaushal, challenged the Delhi high court’s decision in the supreme court. 

It escalated to a point when the Supreme Court, on the basis of appeals filed by private parties set aside the High Court’s judgment and instead upheld the criminalization of gay sex while denying the LGBT community the right to sexuality, sexual orientation, and the choice of partner. Regardless to say, the news wasn't perceived well by the public.

The above reinstatement of the penal code, 377 was enacted in the year 2013. The following years between 2013 and 2017, there were many petitions filed against the law, among which included the support of high profiled Indians including such as the chef Ritu Dalmia and the award-winning Bharatanatyam dancer, Navtej Singh Johar. The petitions were filed by the activists claiming that their rights to sexuality, the choice of sexual partner, sexual autonomy, life, privacy, dignity, and equality, along with the other fundamental rights which are guaranteed under the Constitution, are being violated by Section 377.

Mostly, the entire bout demanded the right to privacy to be granted to the LGBTQ community and worked against the enactment of IPC section 377. It was in July 2018, that the supreme court held a hearing towards petitions filed against the penal code law. The central government reacted by leaving the decision in the hands of the court itself.


The Recent Verdict 

Bearing the air of finality, on 6th September, the supreme court, in the five-judge Bench, led by the then-Chief Justice of India Dipak Misra, in subsequent but concurring judgments, heralded the commencement of a new era for India's LGBT community as the judge struck down the law under the verdict that the law posed a threat to the obstructed need of one’s sexual orientation which constituted an important element of the right to privacy and dignity.

It wasn't until 6 September 2018 that the Supreme Court of India decriminalized homosexuality by declaring Section 377 of the Indian Penal Code (IPC) unconstitutional which imparted freedom to the LGBT persons to involve in sexual activities with the person of the same gender. This, however, still hasn't legalized the marriage or relationship between persons of the same sex, but on the bright note, a transgender may marry under the Hindu Marriage Act, 1955 since 2019. This day marked the triumphant end to the decades-long struggle towards the demand for justice for the marginalized community.

Looking Ahead 

Although over recent years, LGBT people have gained more tolerance and normalcy in India, especially in large cities like Delhi and Mumbai where the influence of media and stardom is strong. Yet most LGBTQ people in India remain feeling alienated, fear extensive discrimination from society and their families, who might deter it shameful. While this discrimination is less prevalent in cities, the idea itself is considered taboo in rural areas, as a result, LGBTQ people often face rejection from their families and get forced into opposite-sex marriages.

The banishment of section 377 is a ray of hope that has granted basic human rights and identity to the LGBTQ community persons, leading them to move past door which served the purpose of getting validation from the society, one which has been successfully granted. What this abolishment has evoked is the possibility for these individuals to approach the court in the future on the issues of legalizing same-sex marriages, adoption, and reservation in employment, all of which are prohibited as of now.

- Vaishnavi Raghavan 


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How Did The Story Of Section 377 Unfold How Did The Story Of Section 377 Unfold Reviewed by EMN on May 29, 2019 Rating: 5

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