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Section 377: Is It Needed for India?

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Section 377: Is It Needed for India? ISSN 2455-4782 SECTION 377: IS IT NEEDED FOR INDIA? Authored by: Chandrasekhar Pillai* * 2nd year LLB Student, Christ (Deemed to be University), Bengaluru ______________________________________________________________________________ ABSTRACT Homosexual relations are criminalized in 72 world countries including India. In India a new discussion regarding Section 377 of the Indian Penal Code came to light on August 24 2017 when a nine-judge bench of Supreme Court while taking of Right to privacy as an important right found that the presence of Section 377 is a serious threat to one’s sexual life which is one’s private matter which involves security and dignity. The section 377 of the IPC was upheld by Supreme Court in the case of Suresh Kumar Kaushal v NAZ Foundation (Civil Appeal No. 10972 of 2013) which overruled Delhi High Court’s decision in the case NAZ foundation v. Government of NCT of Delhi [WP (C) 7455/2001] which found Section 377 of IPC unconstitutional. By upholding the validity of Sec 307 Supreme Court has criminalized consensus sexual relationship between people of same sex. Thus it hampered fundamental rights of the LGBTs like their Right to Life and Right to choose. This paper focuses on a comparative analysis between the status of LGBT rights in Christian countries and even in Jewish country Israel where it is legalized with that of India where LGBT rights was failed to be recognized due to Judeo Christian morality. This paper also analyse International Conventions like Article 12 of the Universal Declaration of Human Rights 1948 and Article 12 of International Covenant on Civil and Political Rights 1966 should be considered for setting up a strong legislation that deals with LGBT rights. The paper suggests amendments should be made in the Special Marriages Act to promote sexual union of same sex people rather than making changes in the personal laws which may attract protest from religious groups. Key words: Homosexuality, Fundamental Rights, Right to life, Right to choose, Section 377 197 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 INTRODUCTION India which became independent from Britain in 1947 even today is influenced to a large extent by the rules which were passed by Britishers almost a century ago. It is to be realized that these laws were passed by the Britishers to regulate the situation which prevailed in the country a century ago or the law was in balance in the societal norms then. So these 100 year old rusted laws will not fit the socially and politically advanced India. One of such law is the Section 377 of the Indian Penal Code titled as unnatural offences which criminalizes sexual activities against the order of nature including homosexual sexual activities. The section provides for a punishment of imprisonment up to 10 years and fine for these kinds of offences committed by people. The law also involves implications for Heterosexuals where the consensual sex between two private individuals is treated as an offence and is punishable under the law. This section was being challenged in court of law through numerous cases filed by many NGOs and private individuals toward the end of 20th century and is continuing till today. The first case which involved the question of the validity of this section was NAZ Foundation v NCT of Delhi1 before the High Court of Del hi. The Delhi High Court deleted the section and noted that the section applied to only non-consensual activities and not to private consensual activities and thus the effect of decision was that the homosexual acts are not illegal. The decision of honorable High court was considered a path breaking verdict which demolished a 150 year old law which caused discrimination to LGBT section in the society2. The honorable High Court of Delhi declared Section 377 of IPC unconstitutional as it was violative of Article 14, 15 and 21 and read down the section allowing consensual sex activity between the people above age of 183. The court also said that it violated article 14 of the constitution because it caused unreasonable classification for homosexuals4. The decision was highly controversial one and it welcomed protests from the orthodox communities including religious groups in society. Thus in the case of Suresh Kumar Kaushal v NAZ Foundation5, an appeal was filed against the decision and the Honorable Supreme court of India overturned Delhi HCs decision6. The Supreme Court said that this section never 1 WP ( C ) 7455/2001 2 Delhi High Court legalizes consensual gay sex, CNN IBN, 07-02-2009 3 Oindrilla Mukherjee, Unnatural offences under the IPC, Academike, July 21, 2014, https://lawctopus.com 4 Naz foundation v Govt. of NCT Delhi, 160 Delhi Law Times, pg.91 ( Delhi High Court 2009) 5 Civil Appeal No. 10972 of 2013 6 Ira Trivedi, The Indian in Closet: New Delhi’s wrong turn in gay rights, 93 no.2 torrent relations,21, 22-23 (2014) 198 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 violated Article 14 or 21 of the constitution as the section intends to punish unnatural lust and is not intending to corner a particular section. The court also gave reasoning that as it was a pre- independent legislation and if it was violative of rights under Part 3 of the constitution then it would have been repealed by Parliament earlier itself7. The section recently came into news when a nine-judge bench of Supreme Court while taking of Right to privacy as an important right found that the presence of Section 377 is a serious threat to one’s sexual life which is one’s private matter which involves security and dignity8. On May 1st 2018 Supreme Court sent a notice to Central government on fresh pleas for scrapping Section 377 of IPC and legalize Homosexual Acts9. HISTORY OF HOMOSEXUALS IN INDIA In the Suresh Kumar Kaushal case one of the main arguments raised by the respondents i.e. NAZ Foundation was that Section 377 was based upon Judeo-Christian moral and ethical standards and is used to discriminate minorities i.e. LGBTs. Thus by the rejection of that argument by Supreme Court it is contented that the Homosexual activities are against the ethical and moral standards in the country. The Vishwa Hindu Parishad, a right wing organization said that homosexuality was “against Indian culture and values” and they welcomed the decision of Supreme Court which upheld Section 377. They called “Homosexuality as an imported disease which needed treatment”. Importance was given to the culture and values of India rather than the rights of the minorities i.e. LGBTs. The justification given by Supreme Court was that the “section punished only unnatural offences and it did not discriminate anyone on the basis of their sexuality and if this section is deleted then there will be no other laws to govern unnatural offences”. But some questions which are to be asked is “whether the culture and values in India oppose homosexuality?, “ Is Hindu religion as claimed by VHP is anti-homosexual?” 7 Neeraj Gurmani, Unnatural offences under the IPC, Academike, March 27 2015, https://lawctopus.com 8 Anand Grover, The freedom to choose, The Tribune, July 17 2018, 12:28 AM IST http://www.tribuneindia.com 9 Amit anand chaudary, gay hotelier moves SC against SEC 377; top court seeks Centres’s response, TOI, April 24 2018 10:58 IST, http://m.timesofindia.com 199 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 Rig Veda, one of the four canonical sacred texts of Hinduism, written in 1500 B.C , depicts sexual activities between women10 and Rig Veda mention “Vikriti evam prakriti” which means what seems unnatural is also natural11 and this text indirectly mentions that there is no such kind of thing like unnatural in this world. In Sutras, supplemental writings to Vedas, it seems to support that homosexuality was supported during ancient times12. The ancient Indian text Kamasutra, written by Vatsyayana, mentions erotic homosexual behavior and it might even surprise anyone who has visited some Hindu temples like Khajuraho in Madhya Pradesh, the walls of which have carvings that depicts homosexuality13. This shows the tolerant attitude of ancient people towards homosexuality during those days. In another ancient text Manusmriti written by Manu forbids homosexual activities and prescribes minor punishments like cold bath for these tendencies14. But today in India the punishment for homosexual offences are rigorous like imprisonment and even after centuries had passed it can be seen that our country is still less tolerant than the people in ancient society. In Hindu religion the homosexuals were given a predominant position even today they are worshipped as god by people. So in ancient India the position of the homosexuals were more liberal and was much better than the present world. The condition of the homosexuals worsened when Mughals became the emperors of India and during this time homosexuals were awarded rigorous punishments like flagellations and even death as the laws followed by them were Islamic laws and these laws considered homosexuality as a sin15. The condition of these people further worsened during the period of British rule in India. The British gave cruel punishments to the homosexuals in the country; there were mainly two reasons for such a behavior from the british government. The first was- Due to tolerant attitude towards homosexuality by ancient India there was a rise in number of the homosexuals in India and as a result of which it became really difficult for the british to control or regulate the homosexuals.
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