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Section 377: Archaic or Imperative?

It is a section of Indian Penal Code which defines ‘unnatural offences’. According to this section “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 fine”. Penetration is sufficient to constitute the carnal intercourse necessary to be the offence described in this section. This section has its roots in British colonial legacies where it was first introduced by Lord Macaulay in 1860 as a part of IPC. It was enacted on the ground of Biblical belief that homosexuality is against the act of nature and is condemned by the Bible. This section extends to any form of sexual intercourse apart from the Pino-viginal sex. Initially it covered only anal sex but its ambit has been widened to include oral sex and all form of intercourses through various judicial interpretations.

The most affected part of the society by this section is the LGBT (Lesbian, Gay, Bisexual, and Transgender) community who has a different sexual orientation and generally has homosexual traits. Although there is no proper definition of homosexuality but, it is broadly accepted as physical, emotional and psychological attraction to persons of the same sex. Although it is not exactly known what causes homosexual orientation but scientists believe it is caused by a complex interplay of genetic, hormonal and environmental influence and don’t view it as a choice. Scientific research has shown it as a normal and natural sexual variation and is not limited to humans. Many animals have also been found to be homosexuals.

Critics of this law argue that the law is very ambiguous and laden with terms like ‘voluntary’ and carnal intercourse. The term voluntary is open to interpretation and can be interpreted as a male/transgender who commits rape on other person or two consenting males/transgender involving in any form of penetration. it raises a fundamental question—should not the state allow consenting adults to make their own sexual choices? If a person can’t enjoy his privacy then isn’t it violating his right to dignified life assured by our constitution under Article 21. Criminalizing consexual sex particularly homosexual sex is enforcement of biblical beliefs in today’s era. The critics argue that while the English law has moved on enacting in 1967, the Sexual Offences Act, which decriminalizes homosexual sex between consenting adults, India is still holding to this section of IPC. They also argue about the lack of precise definition of the term carnal intercourse against the order of nature whose proper interpretation is not defined in the IPC.  Even heterosexual couples can also face criminal proceeding against section 377 of IPC. It is also argued that if Article 14 of Indian Constitution ensures right to equality as well as equal protection of law then why the state is discriminating against homosexuals in expressing their sexual preference.

However, many child activists do favour section 377 and argue it to be much needed on statute book to tackle cases of child abuse. Many religious beliefs and dogmas argue homosexuality and other forms of sex to be against the law of nature. Homosexuality is against the norms or morals of society and religion. Supporters debate that decriminalization may lead to decline of sex ration and students and Army people might opt for homosexuality to remove stress.

In 2003, a NGO named Naz foundation, which works in the field of HIV/AIDS prevention and specifically with homosexuals filed a PIL in Delhi High Court demanding Section 377 be deleted because it was being used to harass homosexual patients. Delhi High court upholded that section 377 is violative of Fundamental Rights of the Constitution such as Article 14, 15 or 21 and consensual homosexual sex was decriminalized. After this judgment Election Commission of India responded positively towards it and put the option of a third gender on its forms as others along with male and female. But in 2013, Supreme Court of India criminalized homosexuality by reversing the judgment of Delhi HC and upholding the validity of section 377. Further, SC said that it is the work of the legislature to repeal or amend this section and they shall endeavor to remove such controversial provision from statute book of India. Also in 2014 judgment, SC declared transgender as third gender and they be given reservation under OBC quota.

But the question still remains, has this judgments of SC has done any justice to this section of minorities in India? Are we as a society persecuting them? Although the SC has given the transgender community the recognition but what about their and other LGBT community’s right to love their choice. Do our legislators really need to repel this archaic law and follow suit with many western countries or should they follow status quo of society and stick to religious interpretations and order of nature?