Going through the Evolution of Section 377 of The Indian Penal Code

The Indian Penal Code was drafted in the year 1861 by Lord MaCaulay during the British Raj, before India’s independence. Section 377 of the IPC criminalises any sexual activity that is not primarily heterosexual, in that, it outlaws every act that is not the conventional penetration of a vagina by a penis. A common contention that surfaced in various cases that was heard in the Supreme court, was along the lines of these laws having a very different assertion than what is required today. In the earlier days, sexual activities were prescribed for procreation only. Any sexual activity which was pleasure driven was labelled as ‘carnal intercourse’ in the eyes of the law. The use of the word ‘Carnal’ now widened the scope of unnatural offences, which was what Section 377 was all about: against homosexuality, against the entire LGBTQ community.

In recent times, the first notable judgement favouring the LGBTQ was kick-started by a written petition filed by Naz foundation, an NGO, in the year 2009. They argued that the section 377 violated the Right to Life and the Right to Privacy guaranteed to the citizens, by way of saying that, no aspect of one’s life is more intimate/private than their sexual relations or sexual orientation. In addition to these violations, this law gave the police force a chance to detain individuals, exert physical violence and even extort money from the allegedly accused. Justice Muralidhar declared that the criminalisation of consensual sexual activities between adults violate fundamental rights of the citizens of India.

Nevertheless, a two-judge bench ruled against the favour of the community in the year 2013, when a Hindu Astrologer, Suresh Kumar Koushal, thought it was necessary for the Supreme Court to reverse the High Court judgement. This is when the written petition initially filed by the NGO was dismissed and Section 377 was declared not unconstitutional and not as a violation of fundamental rights on the grounds of morality, religion and politics.

Post this judgement, the LGBTQ community anticipated a very bleak future in legalising their rights, but in the July of 2018, their hopes were reinstated as the Supreme Court decided to conduct another hearing following a bunch of petitions challenging the section, using a 5-judge bench including our Chief Justice of India, Mr. Dipak Misra. The petitioners continued to argue that the Section violates various Fundamental Rights of the citizens and is therefore unconstitutional. The respondents from the centre rebutted with scientific evidence from a Washington based organisation which stated that deviant sexual orientations are not natural thereby trying to derail the petitioner’s previous contentions. After the arguments concluded, the Supreme Court however reserved the verdict assuring they wouldn’t go for a majoritarian vote which would tilt towards preventing a fair judgement.

LGBTQ activists are now hopeful that this verdict will bring the right kind of changes the Indian society needs one of them being tolerant towards the unfamiliar. A Lucknow health worker, Arif Jafar, an openly gay man speaks to the media about his experiences in jail after being imprisoned for 47 days in 2001 for instructing illiterate homosexuals on protected sex and handing out condoms. He says he was mistreated by the guards and lived off dirty water besides losing all of his teeth. Though he was released on bail, Mr. Jafar has had to go to the court every month on parole where he is treated miserably all over again. He is, however, hopeful that one day India will change its attitude towards sexual orientation.

Owing to such determined activists, cities are increasingly holding gay pride parades where the youth these days finds the confidence to come out in front of family and friends in the right environment, as opposed to being forced or embarrassed by their peers. This brings us back to activists like Jafar who did not get the chance to pick a safe environment to come out in, like these youngsters. In a way, they have sacrificed their dignity for these legal rights.The real question to be asked would be: is it moral to dehumanise a person owing to his sexual orientation? And the answer that we seek must always be in the negative. It is never justified to target anyone, from whichever class, race or caste on the basis of their sexual orientation. And if we go on to do that, we are the lesser humans.

Picture Credits : thenewsminute

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