The Current State of Section 377

– Samyukta Iyer, I B.A. English

The wildfire that is Section 377 has been sweeping across the country, and unless you’ve been living under a rock, you’d know the basics of it. Section 377 of the Indian Penal Code criminalises carnal intercourse that goes against the natural order- including bestiality, sodomy, and oral intercourse. Simply put, it criminalises consensual,unnatural sexual acts of heterosexuals, and more famously protested is that it holds against law any such act between two people of the same gender, i.e., the LGBTQIA+ community, targeting gay men, lesbians, and bisexual people most viciously. Now the fairness of this law must be called into question; two consenting adults of the same gender who may engage in sex with each other will be punished with up to ten years of imprisonment, but a rapist is punished with only seven years in prison. Can you imagine the kind of message this law sends out to people?

Fun fact: Section 377 was written into the Indian law by the British Raj in 1861. However, the British had the good sense to make homosexuality legal in 1967 in England and Wales, while we, well, we held on to it.

The history of Section 377 is vast and controversial. In brief, it was introduced in 1860, and in 2009, the Delhi High Court struck down this law, but it was re-criminalised in 2013 by the Supreme Court. On 27 April 2016, five eminent personalities- Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath, and Ayesha Kapur- from the LGBT community filed a fresh writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code. The petition was placed before Justice S.A. Bobde and Justice A.K. Bhushan on 29 June 2016 where an order was passed to post the matter before the Chief Justice of India, Justice Dipak Misra for appropriate orders. The case then went into cold storage. On 8 January2018, the matter was listed to be heard by the CJI’s bench, which passed an order stating that the case will be heard by the Constitutional Bench, where it would be heard afresh. The verdict is likely to come before October 2nd, before the tenure of the CJI ends.

To the more conservative Indians who worry about creation and reproduction, per-haps we must remind you that we are 1.4 billion people in India itself. Population is never going to be a problem for us. In fact, what we need is people who can adopt the thousands of orphans and abandoned babies who will never have good homes. Do you know who’s more likely to adopt them? Gay people.

Prudish as Indian people are, we must wake up and acknowledge that sexual orientation is not a mental illness and must be respected as part of a person’s identity. It is about having a choice, and revoking Section 377 would be a violation of the Fundamental Rights guaranteed by the Constitution- the right to privacy has been upheld as a fundamental right since 24 August 2017 under Article 21, Part III of the Constitution. By criminalising sexual orientation, we are essentially discriminating in the worst way against the LGBTQIA+ community and stripping them of the dignity and privacy they deserve as human beings. It’s time we confront our prejudices and act against it.


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