Section 377: A travesty of Justice

“Never be bullied into silence. Never allow yourself to be made a victim. Accept no one’s definition of your life; define yourself.”–Harvey Fierstein

  1. Unnatural Offences 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.

Section 377 has had its ups and downs since its inception during the British era. Its foundations were laid by The Buggery Act of 1533 and were enacted under the reign of King Henry VIII. This law defined ‘buggery’ as an unnatural act against the will of God and men. In 1828, the Act was repealed and was replaced by the Offences against the Person Act 1828. This act not only allowed easier prosecution of rapists but also homosexuals. This Act was considered as the main inspiration for Section 377. What’s ironic is that even though the British have made same-sex relationships legal via Sexual Offences Act 1967, India still reels under its archaic laws written in the 17th century.   

In 2001, Naz Foundation challenged Section 377 in Delhi High Court by filing a lawsuit that allowed homosexual relations between consenting adults. However, it was dismissed by the High Court in 2003. The judgement was appealed by the NGO to the Supreme Court and this led to the historic judgement in 2009 that decriminalized consensual sexual acts between adults. But unfortunately, this decision was overturned by the Supreme Court stating that judicial intervention was not required in this issue effectively re-criminalizing sexual intercourse “against the order of nature”. Then in 2015, we had Shashi Tharoor’s Private member’s bill that was dismissed in its early stages putting a full stop on such legalities for now.

Homophobia in India is quite complicated. It’s not like violence against the queer or discrimination against them. We simply reject the possibility that a person could be sexually attracted to his own sex.

The millennials of India have been more vocal about LGBT rights and we have seen Pride Parades in Delhi, Bengaluru and Kolkata. They were quite successful too given that there were no protests by the right-wing groups. Attendance at the pride parades has been increasing significantly since 2008, with an estimated participation of 3,500 people in Delhi and 1,500 people in Bangalore in 2010.

Gay Pride March in Bengaluru(2013)

Last year the UN tabled a resolution ‘The question of the Death penalty’ to denounce capital punishment for consensual same-sex relations. The resolution was passed by the 47 member UN Human Rights Council, 27 in favour,13 against and 7 abstained. Among these 13 nations which included countries like Saudi Arabia and Iran was India. These countries have laws which award death penalties to homosexuals. The Constitutional position is that the death penalty can only be awarded in ‘rarest of rare cases’ which clearly indicates that India can never impose death penalties for such crimes.

Last year on August 24, the Supreme Court declared that privacy is a fundamental right. This has opened up a ray of hope for the LGBT community in India. Four out of the nine-judge bench raised the possibility that Section 377 could be decriminalized on the account that it violates the right to privacy of the LGBT community. The Supreme Court’s affirmation to the right to privacy will prevent tragic incidents like the 2010 death of Professor Shrinivas Ramachandra Siras from Aligarh Muslim University. Siras was humiliated and suspended from his job after a media crew secretly burst into his quarters and filmed him having sex with another man. Professor Ramachandra was publically shamed as if he was a criminal and he committed suicide to put an end to his misery.

There is not one but several petitions before the Supreme Court. One of them is a plea by a group of 20 former and current students of IIT challenging Section 377. The youngest of this group is a 19-year-old IIT Delhi boy and the oldest one graduated from an IIT in 1982. Overturning this draconian law will not change things overnight but this gives the Supreme Court an opportunity to set the stage for an India where the LGBT community need not worry about the stigma, silence and violence that Section 377 brings in its wake.

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