Perched in a tiny corner of the rather voluminous Indian Penal Code, Section 377 has been the kernel of a worldwide concern. The legislation based on this section antagonises quite a significant portion of the population – and casts doubts over the efficacy of Article 21 of the Indian Constitution which guarantees every citizen, the ‘Right to life and personal liberty’. This section also abridges various other fundamental rights enumerated in the Constitution – for instance, Article 14 which vouches for ‘Equality before law’, thus safeguarding any individual from discrimination on basis of her or his sexuality.
The history of harassment faced by members of the LGBTQ community reveals how repeatedly these rights are violated with absolute impunity. Unfortunately, the legal machinery down the years has done nothing to reprove the social conventions which condemn homosexuality.
Section 377 aims to catalogue what ‘type’ of sexual relations would be permissible in society. It seems to legitimise hetero-normative sexual relations as the only ‘natural’ or ‘acceptable’ form. While there isn’t any explicit mention of homosexuality or other alternate sexualities, the larger implications are directed towards them. Given the ambiguity that looms large over this section, interpretations can be (and have been) drawn by both sides – thereby muddling the debate even more.
This section reflects the age-old colonial legacy, which essentially aims to condemn sodomy. Clearly, this perception had religious bearings – and the most obvious corollary was that only penile-vaginal sex adhered to the ‘order of nature’. Consequently, stigmatising and criminalising homosexuality became widely prevalent.
The social taboo was so enormous that people started ‘closeting’ their sexualities. Almost anything that was not hetero-normative was considered ludicrous – a kind of a mental disorder. In the recent years, there has been a louder narrative around this section – and while a lot of people are openly owning up to their diverse sexual orientations, there’s also been a greater backlash that the LGBTQ community has been facing at the hand of the State and the society, by and large.
The National Crime Records Bureau released a report in 2015 which stated that while there had been a 17% rise in the number of complaints filed under this section, about 54% of those cases ended in acquittal. In fact, ever since the 2013 Supreme Court verdict, which re-criminalised Section 377, a lot of instances have surfaced where this section has been used to intimidate individuals arbitrarily.
The authorities have not only been equivocal – they have also been complicit in the retention of this section. India has also abstained from the United Nations Human Rights Council resolution, decreeing the appointment of an independent expert on sexual orientations and gender identity. Such gestures have been deemed regressive by a large bulk of people, within the country and abroad.
This law proscribes ‘unnatural offences’, leaving behind a wide chasm of ambiguity – which has been subsequently interpreted and appropriated in so many ways. Among other issues, it has severely jeopardised the lives of certain sections of our society like minors, transgenders and even those living with HIV/AIDS.
By deeming anything other than penile-vaginal intercourse as perverse, the state not only infringes on the privacy and liberty of citizens, it also segregates these from the purview of sexual offences as prescribed under Section 376 of the IPC. Some of the pitfalls of retaining Section 377 go beyond stories of discrimination and stigmatisation. Here are some of the cases which enlist the insidious impacts this section has had.
1. In 1994, AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist group, lodged a PIL at the Delhi High Court, urging the court to re-examine the legitimacy of Section 377 to facilitate the distribution of condoms among prison inmates and forbid any isolation of inmates by jail authorities on the basis of sexual orientation. This had been triggered by a study conducted in Tihar Jail, where a lot of inmates were sexually assaulted by the police officials – but given the limiting scope of section 376, they enjoyed absolute impunity.
2. In 2001, the Naz Foundation had registered a PIL at the Delhi High Court, demanding that Section 377 be decriminalised since it violated Articles 14, 15 and 21 of the Indian Constitution. In 2009, the court passed a revolutionary order, denouncing the given section as it believed that “sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.” The verdict advised that Section 377 should continue to govern cases of non-consensual penile-non-vaginal sex and sexual offences involving minors.
3. In 2013, a petition, under Suresh Kumar Kaushal (versus the Naz Foundation), was filed after voices against the Delhi High Court judgement were galvanised. The Supreme Court reversed the judgement, denying that there was ample evidence to point out that the Constitution was violated in this section. It also found the complaints about police abuse insufficient. According to the Supreme Court, the final onus on changing a law remained with the Parliament – and thus, it reinstated Section 377.
4. In 2015 and 2016 respectively, MP Shashi Tharoor attempted to introduce a private member’s bill which sought to decriminalise private sexual activity between consenting adults, irrespective of their sexual orientation and gender. Unfortunately, a majority of the members voted against this motion and it could not be taken up for any further debate. The recent judgement on the right to privacy, however, could make repealing this section easier.
Some substantial crests and troughs later, clouds of uncertainty on the predicament of Section 377 remain. When it comes to the matter of free love, India continues to hope for signs of the rainbow.