SECTION 377: JOURNEY TILL NOW

This article was written by Prashant Yadav, a student of S.S.Jain Subodh Law College.

The Indian legal has yet another chance to recover the foul play and discrimination the nation’s LGBT people group has been subjected to for quite a long time. The reference of homosexuality finds in pre-colonial societies in India. In the Manusmriti, Lesbianism was treated as serious offence and for it more serious punishment was there. In Islamic period, the Muslim Shariat law treats homosexual conduct as a serious offence. Therefore in different religion different punishments were provided to homosexual offences in India. Under the Indian Penal Code uniform prescription of homosexual behavior in the form of unnatural offences its nature and punishment has been prescribed.

Before 19th century these issues were only limited to the society but in 19th century the rights of LGBT minorities raised their issues relating to violation of their human rights. These serious issues came forward by various civil society organizations in India. It is only in the final decade of the 20th century that the gay/ lesbian/ bisexual/ transgender movement brought to the fore the rights of those discriminated against because of their sexuality. Sexuality is sometimes viewed even in liberal and radical circles as a frivolous, bourgeois issue.

As a five-judge Supreme Court constitution seat starts hearing petitions on rejecting Section 377[1]of the Indian Penal Code, the Indian legal has yet another chance to recover the treachery and segregation the nation’s LGBT people group has been subjected to for quite a long time.

At a time when countries across the world are adopting more and more progressive and inclusive legislation, such as the legalisation of same-sex marriage, India’s refusal – on the basis of an outdated ‘moral’ framework – to decriminalise consensual sexual acts and relationships between adults is a blot on the republic.[2]The most recent group of petitions testing Section 377 draws from this prior nine-judge seat Puttaswamy judgment, in which the court watched that “correspondence requests that the sexual introduction of every person in the public arena must be ensured on an even stage. The privilege to security and the assurance of sexual introduction lie at the center of the principal rights ensured by Articles 14, 15 and 21 of the constitution.”

In striking down the high court judgment, the Supreme Court four years after the fact contended that exclusive a tiny extent of the nation’s populace is comprised of individuals with non-standardizing sex characters and sexual introductions, as though this apparently unimportant minority had no privilege to insurance. Further, the court said that less than 200 people have been indicted under Section 377 in over 15 years, which does not make Section 377 violative of Articles 14, 15 and 21 of the constitution. This court overlooked the overwhelming impact the plain plausibility of arraignment has had on ages of Indians whose sexual introduction was criminalized and influenced the subject of dangers, to coerce, criticism and suppression.[3]

Sexual orientation is the term used to depict examples of passionate, sentimental, and sexual fascination and feeling of individual and social character in view of those attractions.[4] Sexual orientation exists with select fascination in the inverse or a similar sex. At the point when a man’s sexual and enthusiastic fascination in individuals of a similar sex is called gay introduction if fascination is towards inverse sex it is called hetero introduction and if the fascination is towards the two sexes it is called swinger introduction.

Human rights and Fundamental rights are pertinent to all people however state has neglected to make unique enactment which secures privileges of LGBT minority network and to give genuine equity to them. They are additionally individuals and such treatment ought to be given by the state to these individuals. In numerous examples LGBT people are not legitimately shielded from damaging and prejudicial activities.

These people group by and large commend pride, decent variety, uniqueness, and sexuality. Homosexuality is an inclination or want including sexual fascination in individuals of one’s own sex. In spite of the fact that homosexuality has a long history in India, the gay development is moderately incipient. As of not long ago, most gay people in India did not have numerous social and social roads to express their sexuality. This is evolving now, on account of more prominent mindfulness and instruction.

Homosexuality has an old history in India. Old sacred writings like Rig-Veda which goes back around 1500 B.C. also, models and remnants portray sexual acts between ladies as disclosures of a female reality where sexuality depended on delight and richness. Homosexuality is by and large considered an unthinkable subject by both Indian common society and the administration. As of late, notwithstanding, dispositions towards homosexuality have moved marginally.

Specifically, there have been more portrayals and talk of homosexuality in the Indian news media and by Bollywood. Scope of the Section 377 of IPC is Ambiguous. Under section 377 of IPC scope of unnatural offences is ambiguous because there is no clear distinction between consenting and coercive sex, against the order of nature etc. On 2 July, 2009, Delhi High Court, decriminalized homosexual intercourse between consenting adults and judged section 377 of ‘the Indian Penal code to be conflicting with the fundamental rights guaranteed by the Constitution of India.

The Apex Court is yet to accept a last call due on 17 July, 2018 on whether Section 377 of the Indian Penal Code (IPC), which criminalizes consensual sexual demonstrations of Lesbian, Gay, Bi-sexual and Transgender (LGBT) grown-ups in private, adds up to refusal of their rights to security and pride and results in net unnatural birth cycle of equity.

The Supreme Court is hearing curative petitions on Section 377 of the Indian Penal Code (IPC) that criminalises homosexuality, a Unthinkabe in to the largely conservative Indian society. An explainer on the law that numerous see as a relic of the British time.

1.Following quite a while of fight in court, the Delhi High Court in July 2009 de-criminalized consensual gay acts in private by proclaiming as unlawful a piece of Section 377 of IPC that criminalizes unnatural sex. The court said “the area denies a gay individual a privilege to full personhood… “

2. In any case, in December 2013, the Supreme Court put aside the HC decision. Equity GS Singhvi (since resigned) maintained the established legitimacy of Section 377 and said it was for the governing body to accept an approach the questionable arrangement.

3.Under 377, consensual sexual acts of adults such as oral and anal sex in private between heterosexuals also are currently treated as unnatural and punishable.

4. The Supreme Court held out hope for the LGBT community when in April 2014, the top court directed the government to declare transgenders a ‘third gender’ and include them in the OBC quota. The court said they should have all rights under law, including marriage, adoption, divorce, succession and inheritance.
5. In February 2016, a curative petition was submitted by Naz Foundation and the then Chief Justice of India, T.S. Thakur decided that the petitions will be reviewed again by a constitutional bench consisting of five members.

6.Sexual orientation rights activists say that Section 377 violates diverse articles of the Indian Constitution – Article 14 which ensures fairness under the steady gaze of law to all people; Article 15 which guarantees that no individual will be oppressed based on standing, sex, statement of faith and so forth and Article 21 which guarantees the privilege of life and freedom to every one of the nationals of the nation.

Following are recommendations:

• State should protect their fundamental rights without any discrimination.
• Special law should be enacted to Provide equal opportunities in social and economic activities. Need to protect human rights.
• Need to take preventive measures in family, public and domestic violence.
• Government should take initiatives to support employers in making workplace and workplace culture more supportive and inclusive of LGBT people.
• Need to change social attitude toward LGBT Minority.
• Free health facilities should be provided by the states to them, including health.
• Need to organize workshops and seminars about their rights.

For the queer community, it has been a long and hard struggle, a struggle to get rid of the criminal tag that the law has unjustly and outrageously foisted on them. Too much time has already been lost. The moment to undo the wrong and live up to the spirit of the constitution cannot be allowed to pass us by again. The Supreme Court must heed the urgency and not let down the country again.

[1]Section 377 came into force in 1862. It says 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 10 years, and shall also be liable to fine.”

[2] https://rbscp.lib.rochester.edu/4399

[3] http://teachingamericanhistory.org/library/document/speech-on-the-dred-scott-decision-2/

[4] http://oaji.net/articles/2015/1170-1449166623.pdf