Supporters of #Section377 are as deplorable as flag bearers of Nikah-Halala , polygamy, Triple-Talaq & FGM

Indian Supreme Court is currently listening arguments on curative petitions challenging its 2013 ruling in the Suresh Kumar Koshal vs Naz Foundation case, which pronounced “unnatural sex” (a term referring to any sex other than penile-vaginal including sodomy) illegal and criminalises all “unnatural” private sexual conduct including those between consenting heterosexual couples.

India is currently among those handful of nations (Mostly Muslim majority governed under Sharia laws) that still criminalise homosexual relationships. But then we also happen to be a nation where archaic practises like female genital mutilation and Nikah Halala are still not barred or declared a criminal offence. The practise of polygamy is still legal in India for a large section of our society and many politicians and social organisations stand united to support acts like oral divorce (Triple Talaq) when Modi government take steps to criminalise it.

All of these are a blot on our society and reflect a failure of the state to adapt laws to the changing times. While the world has moved to legalising of same sex unions, both court and state of India are still stuck at Section 377 — a 19th century colonial relic from British criminal laws imposed on the Indian society.

Picture Courtesy: WSJ

So what is Section 377 under Indian Penal Code ?

“Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The issue has two dimensions: One legal and another social.

In 2009, Delhi High Court declared Section 377 as a violation of the fundamental rights guaranteed by the Constitution. The bench of Justice A.P. Shah and Justice S. Muralidhar held Section 377 to be a denial of the dignity of an individual and to criminalise his or her core identity solely on account of sexuality as violative of Article 21, 14 and 15 in Indian constitution.

“We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.

But this High Court order was later reversed by two bench of Supreme Court in 2013 reinforcing criminalisation of sodomy between consenting adults on the pretext that it the Delhi High Court was “legally sustainable” and that it was parliament’s job was to scrap law. The comments of Justice Singhvi (due to retire next day) was largely criticised for its narrow mindset referring to LGBT community as a “miniscule fraction”.

Letting Section 377 exist in our laws books violate basic principles of Indian constitution that grants equal rights to citizens. Above all, letting state intrude in private sexual expression between two consenting adults in the privacy of their bedroom tantamount to breaching Right to life enshrined in our constitution. Here Courts of India should take a cue from the 2003 landmark decision of the US Supreme Court in Lawrence v. Texas whereby it struck down same-sex sodomy law in the US state of Texas.

The case discussed the issue of criminal penalties for consensual sexual relations conducted in private in the context of liberty and equality of treatment uttering these immortal words

“When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres”.

There is much misinformation on the subject of section 377 in India. Revoking Section 377 has limited consequences and does not give formal recognition to same sex marriages as often claims and argued by detractors. Abrogating Section 377 does not mean give formal recognition to any relationship or marriage that homosexual persons seek to enter. All abrogation of section 377 will achieve is to make two consenting adults (whether homosexual or heterosexual) to engage in sexual practices common to a homosexual lifestyle ending intrusion of the state in their private sexual conduct. The 172nd Law Commission Report in 2000 had also recommended the deletion of Section 377.Indian state can not be allowed anymore to continue with intrusion in private sexual life of citizens and control their destiny by making their private sexual conduct a crime. Section 377 is still a source of police harassment and its removal will be nothing more than a token gesture. Yet, it will be a baby step towards ensuring equal rights for LGBT citizens and ensuring that no one in India is discriminated based on their sexual orientation.

Last year, a nine-judge bench of the Supreme Court gave a landmark judgement unanimously declaring that individual privacy is a “guaranteed fundamental right” and sexual orientation is an essential attribute of privacy. That set the ball rolling on the revising the apex court’s earlier position on Section 377. The bench opined right to privacy of citizens at par with right to life and liberty. Directly referring to the 2013 Supreme Court order upholding section 377, the judgement declared that the argument of “miniscule fraction” not to be a “sustainable basis to deny the right to privacy” and departed from the court’s earlier position that called termed LGBT rights as “so-called rights”. The court went on to announce the the LGBT rights as “real rights founded on sound constitutional doctrine” and observed that Section 377 “poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity” holding that the the Supreme Court decision on section 377 pandered to a “majoritarian” view to deny turn down the LGBT community their inherent fundamental rights of life, personal liberty, equality and gender discrimination.

Abstract from Supreme Court order in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors., 2017

Now coming to the social dimension. A rigid opposition to abrogate section 377 on the pretext of morality, culture and even national security is sham. India is evolving every passing day accepting differing standards of public morality, religion practises and principles of liberty. One can not be made to suffer or face social exhumation for a consenting private act that cause no injury to a third party. We are raising our children in an environment where society and media portray homosexuality as a “choice” and make it as a symbol of weakness and mocking. LGBT community is forced to hide their identity causing and made to suffer under mental trauma. In 2015, a doctor at AIIMS committed suicide when she discovered secret gay life of her husband. Today many LGBT citizens have gained a degree of acceptance form society, a trend limited to big cities of India. Correcting the social discrimination against LGBT is a work in progress and can only be achieved when society understands that homosexuality is a normal variant of human sexuality much like heterosexuality and bisexuality.

Some of the strongest voice in support of Section 377 in India comes from Vatican linked organisations and Wahhabi funded Islamic groups like All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council that had earlier challenged the 2009 Delhi High Court order declaring Section 377 as unconstitutional. Not long ago when a Hindu man by the name of Kamlesh Tiwari called Prophet Muhammad as the first homosexual in the world, millions of Indian Muslims came on streets demanding his death.

Such is the extent of hate that Indian outfits linked to Vatican-Wahhabi nexus hold against homosexuality and LGBT community. Not surprisingly, every nation in the world where homosexuality is punishable by death happens to be a Muslim majority Islamic nation.

Sadly the entire discussion on Section 377 in India has reduced LGBT rights to one issue: Sex. It has completely negated any scope to debate the evolution of LGBT rights in India and freedom of citizens to choose a partner of their choice.

As India marches towards a modern and inclusive secular society, it is much needed that the law takes a stand to support LGBT rights in India. While the 2013 order of Supreme Court on Section 377 left the door open for the executive to bring the necessary amendments to the law, it was not followed up by Modi Government. Now it is up to the Supreme Court of India to lead when the state has retreated rather than protecting rights of its persecuted LGBT citizens. Striking down the anachronistic section 377 is long overdue so that India can move ahead to resist homophobia and grant better protection to its LGBT citizens.

| Lawyer turned Economist |