Decriminalisation of Section 377

1
Decriminalisation of Section 377
Decriminalisation of Section 377 has been a hot
topic in India, even today there are people who
are not willing to accept this law and turn a
blind eye to courts order. India is a democratic
country, with rights such as the Articles 14,
15, and 19 (A), which give freedom and equality
to its citizens, also mentioned in the Preamble
of the Indian Constitution consists word Liberty
that gives the Indian citizen the right to choose
the kind of life they want without any
interference. But Section 377, threaten this
freedom. Lets first see what is Section 377?
Section 377 of the Indian Penal code refers to
unnatural offences i.e, whoever has voluntary
intercourse against the order of nature with any
man, woman or animal, shall be punished with the
imprisonment of life or imprisonment for a term
which extends to 10 years and shall also be
liable to fine. According to section 377, the
act of consensual homosexual relationship is
criminalized and the participants in this act
will be punished accordingly. This act limits
the freedom of sexuality and the right to pursue
ones sexuality in a severe manner. Despite being
a free citizen of an independent country, this
section restricts the freedom of the individual.
The United States, Russia, Nigeria and many other
countries have laws which support the LGBT
community. In India, the struggle based in this
section is too long, But first Lets learn about
its history. History of Section 377 in
India Section 377 is 150 years old rule that
came into practice after the Indian Penal Code
was adopted in 1861 during British rule. This
rule was based on Englands Buggery Act of 1533,
which criminalize sexual activities against
nature including homosexual activities. After
independency also
2
this section remains the same, but this rule was
questioned many times as it threatens the right
to equality, liberty, dignity and freedom of
discrimination on the bases of caste, colour,
creed, sex and religion. Although Section 377
doesn't include the word Homosexual still it
punishes homosexual activities. Many people were
arrested based on this section and were punished
accordingly. Online legal courses on the Indian
Penal Code included the complete history of
Section 377 in-depth, to help people know about
the origin of this law.
3
Case against Section 377 The fight against this
law which threatens people's choice and their
right to privacy was long and hard and from the
very beginning to the point where the justice
was served, the fighters saw many ups and downs.
Many left the fight in middle, many got too old
to fight and multiple make it till the end. Here
is the mentioned case opposing section 377 which
has brought this subject into peoples and
courts eyes The issue was first pointed out by
an NGO, Naz Foundation in Delhi High Court in
2001, but the petition was dismissed. But after
eight years, Delhi high court decriminalised the
relationship between consulting adults of the
same gender. But this judgement was overturned in
2013 by the supreme court, during Suresh Kumar
Khousel vs Naz foundation. Also declares that
amending or changing of this section is the
responsibility of parliament, not the judiciary.
But with the declaration of transgender as a
third gender, many people belonging to the LGBT
community had their expectations high, although
they were disappointed. In the Supreme court in
2017, upheld the right to privacy as a
fundamental right according to the constitution
and also called for equality and reprimanded
discrimination, stating that protection of sexual
orientation lies at the core of fundamental
rights and the right of the LGBT community are
real and founded on constitutional
doctrine. Navtej Singh Johar vs. Union of
India In 2018, the Supreme court hear the
petition based on the 2013 Naz foundation
judgement which was filed in 2016. At that time
this issue was widely spread and many people
came out on section 377, some supporting it,
some opposing it and some criticising the LGBT
community and using these issues for political
purposes and many journalists were involved in
it too. On September 6, 2018, the Supreme court
announced its verdict declaring the
decriminalization of the portion of the section
consisting of consensual relationships between
adults regardless of gender. Other parts of the
section i.e, sexual relations with minors,
non-consensual sexual acts, and Bestiality remain
criminalised. Decriminalisation of Section 377
was taken place as the court found out that,
choosing ones partner is an individuals choice
and punishing them
4
for choosing the way they want to live is a
violation of their fundamental rights. For Law
aspirants it is necessary to learn about every
aspect of this case, every petition and every
judgement as this will help them understand how
such cases concerning changing or adding
something new or removing the section from the
Indian penal code take place. A number of Legal
professional shares their experience on such
cases through seminars, webinars, and online
legal certification courses. Although the
decision of the Supreme court brought hopes and
freedom of relationship to many peoples life
many people criticized it and consider it an
anti-social element. After many years of
struggle, the LGBT community was accepted by the
Indian court and even after that people still
somehow outcast them and think of homosexuality
as a taboo. Many famous lawyers were part of the
struggle behind these cases and thats why the
law aspirants and legal professionals should be
aware of the seriousness and severity of this.
Many legal learning platforms provide online law
certification courses teaching students about
these sections and laws and also organise
webinars with the lawyer who participated in
this case. In the present scenario, the topic of
the unconstitutional of section 377, is
considered a subject which can raise the voice
of dissent in youth and also a great topic for
the case study and legal research. But for
common people of India, including educated ones
still struggle to accept the LGBT community and
think of it more as a disease than the choice
and orientation of ones life.