WHAT IS SECTION 377 OF THE INDIAN PENAL CODE

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SECTION 377 : THE END OF AN ERA

“I am what I am so take me as I am,” the German thinker Johann Wolfgang Von Goethe had said, and this is precisely what the SC has taken into cognizance. The section 377 of the Indian Penal Code lies struck down by the court thus giving the LGBTQ (lesbian, gay, bisexual, transgender, Queer) community the rights they were denied for more than a century and a half. A five-judge SC bench gave a historic, unanimous ruling on Section 377 of the Indian Penal Code, decriminalising homosexuality. The bench, terming Section 377 as ‘irrational, indefensible and manifestly arbitrary’, diluted it to exclude all kinds of adult consensual sexual behaviour.

The ruling stated:

“The natural identity of an individual should be treated to be absolutely essential to his being. What nature gives is natural. That is called nature within. Thus, that part of the personality of a person must be respected and not despised or looked down upon.”

 The fragrance of joy has been spread out around the LGBTQ community when Supreme Court unanimously decriminalised consensual unnatural sex under Section 377 of IPC.

Significance of the Judgment

Decriminalisation of homosexuality is indeed a historic, memorable and far reaching verdict of the Supreme Court. This judgment is not only about the decriminalisation of gay sex but it is also crammed with various significance.

  1. Social morality cannot suppress constitutional morality and Indian Constitution asserts Right to Equality for all citizens irrespective of their choice of gender of their partner.
  2. No one can curb the right to privacy (Article 21) of human being on the ground of sex.
  3. Everyone has right to live without fear no matter in what gender they belong to.
  4. It reaffirms right to live, right to choice that cannot be curtailed to save social morality.

However, this judgment throws challenges on other issues of LGBTQ community which are yet to resolve.

  1. Fundamental Rights: They are still deprived of other fundamental rights under Part III: – They are facing discrimination in employment and education which clearly violate Article 14 and 15 of the Indian Constitution.
  2. Social Discrimination:- Society always nurtures discriminate behaviour for LGBTQ which is very difficult to mitigate. There is no penal law for those psyche who mocks our LGBTQ community.
  3. Economical Deprivation: They are often deprived of right to inheritance. Family members consider them as a shame for the whole family.
  4. No law for their security: Government only makes law on non consensual man-woman sex. But LGBTQ community is not provided with any law for sexual harassment.

The inequality and discrimination act as a selfish giant that has eaten up all the dignity and basic rights of LGBTQ. They are also part of our society and we should not consider ourselves civilised unless we stop discrimination on the basis of sex.

I would like to conclude in the words of Justice Indu Malhotra “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.”

-ARUNIMA BOSE, Advocate