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. Let’s 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 one’s 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 Let’s 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 England’s Buggery Act of 1533, which criminalize sexual activities against nature including homosexual activities. After independency also 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.
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 people’s and court’s 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 one’s partner is an individual’s choice and punishing them 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 people’s 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 that’s 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 one’s life.