Youth Ki Awaaz is undergoing scheduled maintenance. Some features may not work as desired.

Why Should I Accept Section 377, If It Contradicts The Indian Constitution?

Posted by priya saini in Human Rights, LGBTQ
March 4, 2018

In 1860, a provision was added to the Indian Penal Code by lord Macaulay—in British colonies same-sex relations will be regarded as unnatural offences. This was Section 377, and it exists even today.

Homosexuality is defined as same-sex physical, emotional, and psychological attraction. The same way many of you are attracted to a person of the opposite sex.

Lesbian, gay, bisexual, transgender, queer—collectively called ‘LGBTQ’ is intended to emphasize the diversity of sexuality and gender identities in our cultures. It refers to those who are non-heterosexual and/or non-cisgender.

According to section 377 whoever voluntarily, consensually,  without any force has intercourse “against the order of nature” with any man, women or animal shall be punished. Penetration is sufficient to constitute the carnal intercourse necessary to offence described in this section . The maximum punishment is imprisonment for life .

Thanks to 377, there are many aggressions against LGBTQ the community; people are also getting harassed. A heterosexual couple has fundamental rights so LGBT people also have the same. This has led to protests demanding the repeal of the section.

The first issue includes voluntary which means without any force as punishable under section 377 . Therefore the section does not make any difference between adult male predators, men who commit rape on other men, and two males having consensual sex. If all homosexual acts have been declared as criminal, whether it is consensual or not, is nothing but considering all homosexual people as ‘sexual perverts’, thus demeaning their dignity.

Critics of 377 say the State should allow consenting adults to make their own sexual choices. Everybody has the right to control their sexuality and bodily integrity. If a person cannot enjoy their privacy then the Right to Life under Article 21 of the Constitution is for nothing.

The second issue which has been raised is that Section 377 has been not defined properly. The term “carnal intercourse against the order of nature”  will be understood by people as only penetration. If a same-sex couple is staying together they cannot be regarded as committing criminal sexual intercourse, without penetrative sex. Various cases may be subjected to various judicial interpretations.

Apart from vaginal sex, anal sex also includes penetration. But oral sex was not initially tried under 377. However, the law’s ambit went on to include oral sex, because of judicial interpretations. It includes any form of non-peno-vaginal penetration.

But is non-peno-vaginal sex restricted for consenting heterosexual partners? Heterosexual couples can also face criminal proceedings for anal and/or oral sex. Therefore the section is just not directed at homosexuality.

Coming to the third issue, Article 14 of the Constitution ensures a right to equality as well as equal protection under the law, for all. However, the Supreme Court held that a statute is void, or too ambiguous if its prohibitions are not clearly defined. Such vagueness will lead to arbitrary applications, which the Supreme Court says is the anti-thesis of equality.

The fourth issue is related to Article 15 (1) of the Constitution. Under it, the state cannot discriminate between any citizen on the basis of colour, religion, caste, sex, gender, or place of birth. The term sex, however, has a wider meaning apart from ‘biological sex’. Which is why 377 disproportionately impacts homosexual and transgender people on the basis of their identities. Isn’t that a violation of Article 15?

A fifth issue is Article 21—the right to life, which is fundamental to our existence. The Supreme Court has interpreted that the word ‘life’ does not mean mere animal existence, but a life where an individual can exercise their liberty to live a dignified life. Privacy, health, and dignity, the basic essentials of person’s life. An individual’s right to privacy is obstructed by discrimination on the basis of sexual orientation, thereby affecting the right to a dignified life. Thus, 377 has also impeded access to health services for the LGBTQ community. Above all the section violates the basic features of our Constitution, that is justice liberty and equality .

From all this one has to understand that the fight cannot be achieved only through legal amendment. To adopt a healthy and supportive attitude towards queer people, anti-discrimination laws should be accompanied by awareness campaigns to educate parents, teachers, friends, and colleagues.