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Why I Think We Don’t Need To Scrap Section 377, We Only Need To Change It

By Nupur Karam:

Gay rights activists hold placards during a protest against a verdict by the Supreme Court in New Delhi December 15, 2013. A gay rights activist takes a photograph of herself using her mobile phone during a protest against a verdict by the Supreme Court in New Delhi on December 11, 2013. India's Supreme Court on Wednesday reinstated a ban on gay sex in the world's largest democracy, following a four-year period of decriminalisation that had helped bring homosexuality into the open in the socially conservative country. In 2009 the Delhi High Court ruled unconstitutional a section of the penal code dating back to 1860 that prohibits "carnal intercourse against the order of nature with any man, woman or animal" and lifted the ban for consenting adults. The Supreme Court threw out that decision, saying only parliament could change Section 377 of the penal code, widely interpreted to refer to homosexual sex. Violation of the law can be punished with up to 10 years in jail. REUTERS/Adnan Abidi (INDIA - Tags: CRIME LAW CIVIL UNREST SOCIETY) - RTX16JKJ
Image Credit: Reuters/Adnan Abidi.

Dr. Babasaheb Ambedkar, the primary architect of India’s constitution once said, “what are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequality, discrimination and other things, which conflict with our fundamental rights.”

Surprisingly, the conditions prevalent during the days of the drafting of the Constitution continue to remain more or less unchanged.

As a progressive society and a fast developing economy which has managed to redefine itself, we continue to be a regressive people. Demarcations (some necessary, others redundant) are becoming more apparent with time. We live less and less like a society and more like sections of people sharing geographical phase. What we eat, how we dress, the language we speak, who we pray to and our political opinions continue to segregate us.

In an atmosphere like ours, there are only a handful causes that bring us together, even if to a small extent. One of the latest examples that can be cited is the entire debate surrounding Section 377 of the Indian Penal Code. Voices have been raised against the ‘unconstitutional’ nature of this section for years now, with the movement gaining a massive impetus in the last five years.

On the face of it, Section 377 appears to be extremely straightforward. However, once you delve deeper, you realise its complex and intricate framework. While a very crucial aspect which has come under the scanner is the criminalisation of gay sex, there is more to Section 377 than just that.

Section 377 reads:

“Unnatural offences: 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 term which may extend to ten years, and shall also be liable to fine.”

In simple words, the section makes physical relations between two consenting adults of the same sex a punishable offence. Further, the reference to “intercourse against the order of nature” also criminalises sexual activity like anal sex, fellatio (commonly known as blowjob) etc., even if it takes place between a man and a woman. However, although not mentioned in so many words, sexually assaulting a minor too invites a punishment under Section 377, apart from the relevant sections of the POCSO (Protection of Children from Sexual Offences) Act. Necrophilia (sexual intercourse with a dead body), sex with animals and other such ‘unnatural’ practices too fall under the ambit of the section.

As evident, Section 377 is somewhat like a double edged sword. While on one hand, it denies individuals an essential fundamental right, on the other, some of its clauses are crucial to the society and, hence, cannot be ignored. With the raging debate to scrap Section 377, it has become all the more important to review it carefully. Perhaps then we might realise that the need of the hour is to amend Section 377 as opposed to entirely repealing it.

The clause wherein two consenting adults are denied the right to establish a physical relationship with one another, on account of both belonging to the same sex, or to sexual activity between man and woman deemed as ‘unnatural’, poses an immense danger to a very basic right. The Lesbian, Gay, Bisexual and Transgender (LGBT) community in India has been relentlessly raising its voice against the Section. The clauses of this section are in direct violation of their fundamental rights, which goes against the ethos of the Constitution.

Apart from denying gay people the right to be with the person of their choice, the Section often poses problems for sex workers as well. Furthermore, it only gives a fillip to the stigma attached to being gay, with a large number of people feeling that the community has no place in their society. Criminalisation of gay sex, or a particular way of having sex for that matter, cannot be a part of a progressive society and nation and this aspect of the Section needs to be done away with.

However, one cannot ignore the implications of ‘unnatural’ sex entirely. It is on account of this very clause that those accused of sexually assaulting minors are brought to justice. In the recent past, cases of sexual abuse against minors (those below the age of 18 years) have been on the rise. In such circumstances, it becomes essential to safeguard the dignity and fundamental rights of the children of the country. Those held responsible for sexually abusing minors are now charged under Section 377, making their punishment more stringent.

Furthermore, other sexual activities which truly are ‘unnatural’ like having sex with dead bodies or animals, among others, too fall under this Section. Therefore, this aspect of the section needs to be retained, since it is essential in upholding the fundamental rights of minors and preventing their exploitation.

The hue and cry about the scrapping of the Section seemed to have died down a few months back, but a fresh protest has been launched against Section 377. On February 2 this year, a curative petition filed by the Naz Foundation, which concerns itself with the welfare of the LGBT community and others was heard by the Supreme Court. The tribunal headed by Chief Justice of India T. S. Thakur said that all the eight curative petitions submitted would be reviewed afresh by a five member bench. The petition was filed after the Supreme Court in 2013 overturned the Delhi High Court’s 2009 verdict that decriminalised gay sex. The SC in its verdict also stated that the onus of amending or repealing Section 377 would be on the Parliament. Disappointed with the apex court’s verdict, those fighting for the scrapping of Section 377 had to start their struggle from scratch. The conservative views expressed by some sections of society, including politicians and religious leaders only added to their worries. However, the LGBT community in its fight against the Section received immense positive response from members of the film and literary fraternity, who vowed to stand by them.

As the nation awaits a review of the Section and hopes that the judicial system will not disappoint them, Section 377 has managed to become a significant turning point in the history of the country. Firstly, it has managed to unite sections of the society, which have so far been segregated on basis of countless things. Secondly, it has allowed the people to question the judiciary in the country and demand answers as they thought it was in the wrong. However, the climax to this nail-biting fight is yet to come.

Will the section be repealed? Will it be amended? Will our faith in the judiciary be restored? Or will this battle continue for ages to come? However, any decision must be taken only after considering each and every implication of the Section. Further, those fighting for justice must ensure that they have understood the intricacies of the section and are standing up for what is right. A lot hinges from this one decision. One verdict will decide how far we really have come in these 150 years since the Section came into being. This very verdict will decide our fate as a people and, more importantly, as a nation that claims to be a developing one.

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