Criminalising Homosexuality under Section 377 of the Indian Penal Code be Scrapped or Withheld ?

What is Section 377 of Indian Penal Code (IPC) ?

Section 377 of the IPC refers to 'unnatural offences' and says 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 pay a fine.
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Chronicle Legislations on the Issue:

  • In 2001, Lawyers Collective, on behalf of the Naz Foundation had filed a writ petition in the Delhi High Court in 2001, challenging the constitutionality of section 377 on the grounds that the draconian law grossly violates the right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. A notice was issued to Union of India in 2002 and the Attorney General was asked to appear.
  • In 2004, the petition was dismissed by the High Court (citing lack of action). A review petition was then filed against the dismissal, which ironically was dismissed too and then after a Special Leave to Appeal was filed in 2005, a year later the Supreme Court said, "the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated."

  • In 2009, the Delhi High Court, much to the relief of the LGBTQI community passed a judgement that Section 377 indeed was violative of Articles 21, 14 and 15 of the Constitution as it criminalised the consensual sexual acts of adults in private.
  • Before India could take its first steps towards progress however, the Supreme Court quashed Delhi High Court  judgement in 2013 and declared that it was a judicial overreach and that it was not "for courts to create the law" according to the two-judge bench headed by Justice GS Singhvi. The Supreme Court backed out, but passed the ball to the Parliament to review a law that considered private sexual activity criminal.

Arguments in Support of Section 377

  • All religious leaders voiced their unequivocal support to the SC judgement of December 2013 that overturned Delhi High Court Judgement on Section 377.
  • In fact Baba Ramdev went to the extent of suggesting cure of this ‘bad addiction’ through Yoga. Most churches of northern India and All India Muslim Personal Law Board are against decriminalising homosexuality.

  • Those who supported the judgment argue that homosexuality was against Indian culture, against nature and against science and said that it was representative of a regressive animalistic behaviour that may result in out-break of deadly sexually transmitted diseases, like HIV/AIDS.
  • It is an established truth that any sex other than natural can be a cause of many serious ills in the human beings, e.g. homosexuals are more prone to sexually transmitted diseases like, AIDS, etc than any normal person.
  • Decriminalising Section 377 may result in the sex ratio becoming further adverse in the country.
  • Many child rights activists had criticized the Delhi HC verdict de-criminalising homosexuality on the ground that Section 377 was required to prevent cases of child sexual abuse.

Arguments against Section 377

  • Those who support LGBT (Lesbian, Gay, Bi-sexual and Transgender) community vehemently oppose the Supreme Court judgment of 2013.
  • Section 377 of the IPC is violative of Article 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to Equality before Law) and Article 15 (Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth) of the Constitution.
  • Many organizations, like The People’s Union for Civil Liberties published reports of the human rights violations faced by sexual minorities and, in particular, the transsexuals in India.
  • The Reports highlight that the police extorts money from the transsexuals and sex workers and also how they were being harassed and marginalised through moral policing.

  • Further, it was brought out by Human Rights Watch that implementation of this law restricts and impedes HIV/AIDS prevention efforts, and those who are most adversely affected are the sex workers and homosexuals, in whose cases the spread of such diseases are most rampant.
  • The legislations for protection of children and minors already exist, like Protection of Children from Sexual Offences (POCSO) Act 2012. Therefore, it is argued that there is no need for Section 377 in the child abuse cases.
  • Also, it is being argued that progressive countries like Ireland and US have even legalised same sex marriages since 2015. Closer home, Nepal had legalized homosexuality in 2007 and the new Constitution of the country too gives many rights to the LGBT community.
  • Lastly, many progressive countries like, France, UK, Canada, United States, Australia and Brazil have decriminalized homosexuality. Other countries like Belgium, Brazil, Canada, France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain, Sweden and Uruguay allow same sex marriages or a civil union.
Hence, it is argued by those who want Section 377 to be de-criminalised that, it is high time that the Indian Penal Code reflects that India too is a diverse and progressive nation.

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