SECTION 377 AND UNDERSTANDING SEXUALITY

“equality means more than passing laws. The struggle is really won in the hearts and mind of the community, where it really counts” -Barba Gittings

Homosexuality is a stigma which is continuously and constantly justified by discrimination, downgrading, harassment, abuse and language of hate owing to mere the sexual orientation of homosexuals. Over the last 2 decades, the movements for the rights of lesbian, bisexual, gay and transgendered communities have come into its own for the intrinsic value of basic rights from socio-cultural, ethical and legal perspective. Today, diverse voices are seeking for the basic human rights to live with dignity without any fear of oppression and with the same constitutional rights enjoyed by any other citizen. To get the latest news about law then just visit: “Law Planet”.

India’s Supreme Court on September 6, 2018 issued a ruling favour in human rights by repealing a law that bans gay intercourse - Section 377 of Indian Penal Code, 1860 states that “whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment of life or with imprisonment of either description for a term which may extend to ten years, shall also be liable to fine.”

Section 377 is not merely a law about anal sex alone but applies to homosexuality in general. The lack of a consent-based distinction in the offence has made homosexual sex synonymous to rape and equated homosexuality with sexual perversity. Section 377 is the biggest affront to the dignity and humanity of a substantial minority of Indian citizens. The consensual sexual relationship between two adult homosexuals, heterosexuals or lesbians is no more an offence under section 377 of the code. The judgement of Supreme Court in Navtej Singh Johar And Others V. Union of India on decriminalization of gay sex and discrimination on grounds of sex may be cited to support this contention. The high court of Delhi in Naz foundation case has held section 377, IPC unconstitutional same sex, sexual acts of adults in private. On appeal against this high court judgement and pronounced ‘unnatural sex’ as a ‘perversity of morality’. However, this case did not touch upon the issue of same sex union in the form of marriage and only pertained to prohibition on sexual relation against the law of nature as envisaged in section 377, IPC. Thereafter, a curative petition was filed before the Supreme Court to relook into the matter but the court in its order dated December 11,2013 directed that the matter be left for the parliament to decide. But the parliament ducked the matter and rejected private member’s bill to decriminalise homosexuality.

Thereupon, the Supreme Court in February 2016, agreed to look into the matter and directed that all pleas will be renewed by a three-judge bench of the court, the three-judge bench headed by CJI Dipak Mishra preferred to refer the review petition to be considered by a larger bench of five judges. After 70 years of struggles against 150 years old law, section 377 of IPC which made carnal intercourse against the order of the nature a criminal offence, the Supreme Court by its judgement in Navtej Singh Johar And Others V. UOI(2018) scrapped and repealed section 377 granting to LGBTQ+ community the right to equality and legalizing same sex marriage. To know about the “Harvey V Facey Case”.

It’s been 2 years since section 377 of the Indian penal code, British-era law criminalising same sex relationship. But the fight for equality is far from over and the battle ahead will be a long drawn one, fraught with difficulties given that the LGBTQ + community remain closed off to civil rights. From the right to own and inherit property to right to adopt and marry, there is a legal battle ahead for equality could look like for LGBTQ+ community. After legalising homosexuality, the legality of the same sex marriage is now being raised in Indian courts.

While India does not currently recognize same sex marriage, some state courts have recognized the rights of same sex couples who live together. India’s solicitor general has taken a stance against the legalization of same sex marriage, telling the Delhi High Court in September that “our laws, our legal system, our society and our values do not recognize marriage, which is a sacrament, between same-sex couples”. Moreover, there is no uniform law for marriages in India. Marriages are registered under specific acts such as Hindu Marriage Act, Muslim Personal Law, Special Marriage Act etc. The right to surrogacy also remains a far-off distance for the LGBTQ community in the current legal framework and in case the upper house passed the pending Surrogacy Bill, the exclusion of the LGBTQ community will be further cemented. The bill seeks to ban commercial surrogacy in the country and has already been passed by the Lok Sabha. The bill states that only couples who have been married for at least five years are eligible for surrogacy. To know about the “Carlill V Carbolic Smoke Ball”.

Turning the gaze to civil society, sexuality is often dismissed, even in self-declared liberal and radical circles, as a pert or bourgeois issue. In such context, homosexuality is implicitly seen as something “abnormal” that is at best defended as an individual freedom but not as amatter of human rights. Generally, the issue of poverty, class and caste oppression is seen as more relevant than examining oppression based on sexual difference. But this ignores the fact that sexuality is integrally linked to all structures of social oppression such as patriarchy and the caste system. It is ironic, to say the least when human rights activists who claim to advocate principles of indivisibility and inter-connectedness of rights, reduce sexual rights to rights of a discrete minority. One mustn’t fail to recognize that the call for sexual rights is not discrete form and is, in fact, integral to the broader human rights struggle for economic, political and social justice.