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Insights into Editorial: Is it time to review Section 377?
In 2013, a two-judge bench of the Supreme Court upheld Section 377 of the Indian Penal Code, which discriminates against a section of individuals in society on the basis of their sexual orientation, and placed the onus of repealing it on the Parliament.
Recently, a nine-judge Constitution bench of the Supreme Court accorded the status of a fundamental right to one’s right to privacy. The giant leap for Right to Privacy could be a small step towards decriminalizing the draconian Section 377 of the Indian Penal Code, offering a ray of hope to the LGBT community.
A review petition filed by Naz Foundation against the 2013 judgment was dismissed in 2014. But a curative petition is still pending before the top court.
What is Section 377?
Section 377 of the Indian Penal Code dating back to 1860, introduced during the British rule of India, criminalises sexual activities “against the order of nature”, including homosexual sexual activities. Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.
Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at Transgender men.
Courts judgement on Section 377
The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) rightly held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people.
The top court had set aside a historic Delhi High Court judgment that had decriminalized homosexuality.
Supreme Court, in Suresh Kumar Koushal v. Naz Foundation (2013) case, set aside the Delhi High Court judgment and said that homosexuality or unnatural sex between two consenting adults under Section 377 of IPC is illegal and will continue to be an offense. The court said that Section 377 did not suffer from any “constitutional infirmity”.
The astounding claim made in Koushal case that there was no need to challenge Section 377 because the LGBT community constitutes only a minuscule minority has been completely discredited. It was unreasonable to advance the view that constitutional protection is available to a group based on its size.
The Section 377 is discriminatory in nature
- The rights of LGBT population cannot be construed as “so called” rights. This is an inappropriate construction of the privacy based claims of the LGBT population.
- ‘That a miniscule fraction of the country’s population constitutes LGBT” (as observed in the judgement of this court) is not a sustainable basis to deny the right to privacy.
- After theKoushal verdict, there have been a large number of cases where transgender men are being blackmailed by their acquaintances and the police. These cases have sharply risen in the last three years.
- Though there is recourse in law, it is difficult for a transgender person to take recourse to it because Section 377 itself makes transgender’s sexual practices illegal and would put them in danger of being arrested.
- In addition to it, people have undergone terrible humiliation and psychological stress, apart from being blackmailed.
- No human being ought to be subject to such acts on account of a natural sexual affection for another human being
The debate has regained fervour after the privacy judgment. Specifically referring to the rights of the LGBT community, the court said these are not “so-called” rights but are real rights founded on sound constitutional doctrine.
- They inhere in the right to life.
- They dwell in privacy and dignity.
- They constitute the essence of liberty and freedom.
- It further added that sexual orientation is an essential component of identity, and equal protection demands protection of the identity of every individual without discrimination.
- It will be extraordinarily dangerous to give an exhaustive catalogue of what will constitute privacy. Because privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation
While the progressive and timely judgement of the apex court needs to be celebrated, one should not be unmindful of the dangerous path we may tread on if the right to privacy is not tempered with reasonable restrictions.
Religion and rights
Many religions consider homosexuality a sin, a conduct against the order of nature, and hold that an individual falling in this category be considered a criminal. However, by the end of the 19th century, a strong opinion emerged that it was a pathological condition and that the person should not be blamed for such conduct. Later, a dominant view emerged that homosexuality was inborn and therefore not immoral, and it was not a disease. However, there is still no unanimity on the issue and individuals continue to hold diverse opinions
We are living in a democratic society governed by our Constitution. And the Constitution gives certain fundamental rights to citizens and one of the rights is the choice to lead the life one wants. Nobody has the right to disturb and intrude into someone’s private life. In the context of rights enshrined in the Constitution nobody should be harassed. At the same time, they should be aware that such activities are private, to be conducted within their homes.
Should homosexuality be decriminalised?
Speaking in the context of the Constitution nobody has the right to say how an individual should conduct his life, what to eat and what not to eat, what to wear, or comment about people’s sexual activities.
The Supreme Court was right in making this observation in the right to privacy judgment, delivered by a nine-judge Bench, and in another judgment in another case of instant triple talaq as the privacy judgment wherein personal laws have been reaffirmed as being protected under the Constitution. The court has also observed that this right cannot be abrogated by a community in the name of majoritarian view.
In the context of religion and morality, homosexuality is prohibited by Islam. But the Constitution provides fundamental rights — we are a democratic country. But this does not mean a licence to do anything.
The question that arises is, whether by repealing Section 377 we will achieve the objective of privacy and giving equal rights to individuals of any sexual orientation?
- The worst aspect of Section 377 is at the individual level. It makes Transgender person feel like lesser human beings because they are seen as criminals by law. That impairs not only their dignity, but forces them to go into the closet.
- So, the rights of individuals belonging to the LGBT community need to be recognised, and these persons must be treated with dignity. Nevertheless, the law must ensure that the rights of others, especially women and children, must also be protected.
- The order on privacy has to be seen in the context of freedom to religion and the private lives of individual citizens.
- To protest the criminality of Section 377 is the right of every citizen.
The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities. The right to privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. Majoritarian concept does not apply to Constitutional rights.
One’s sexual orientation is undoubtedly an attribute of privacy.
As far as the private affair of an individual is concerned, within the four corners of the house, nobody has the right to interfere into it. Everybody has the right to lead the life they want.
The British, who enacted the law, got rid of it in the 1960s in England. Many countries have got rid of such laws, either by amendment of legislation or vide decisions of the court. India now remains with countries which India would not like to be associated with otherwise.
At the same time, we have to respect our Constitution. We are a country of many religions. One cannot impose his/her views on others. That’s the beauty of our Constitution.
So it is the right time that Section 377 has to be read in totality to safeguard the rights and dignity of miniscule fraction of the country’s population.