Are you aware of Section 377 of IPC?

  • October 1, 2017
  • 11:31 pm
  • Riddhi Puntambekar

The question has crossed the mind of every individual and has been answered differently by each of them. Each and every person has a different opinion about it and therefore different countries have different set of laws when it comes to homosexuality.

It is natural tendency that persons of one gender are sexually or emotionally attracted towards persons with opposite gender i. e. males are attracted towards females and vice versa. But sometimes and in some cases this sexual or emotional attraction is not towards opposite sex rather it is towards the same sex persons.This same sex attraction or orientation is known as Homosexuality and persons with such orientation are called as Homosexuals. Homosexuals can be persons of both the sexes i.e. Gays (male-male) and Lesbians (female-female). Another term LGBT is also commonly used for persons with homosexual orientations; LGBT being abbreviation of Lesbians, Gays, Bisexuals and Trans-genders.

Discriminations faced by homosexuals in our society are at various levels; beginning from within their homes to outside world as a whole. Their entire life is a struggle only because they are born with a particular sexual orientation which is different from others. In fact it is proved through various scientific or psychological studies that such behaviours are perfectly natural.

The issue of homosexuality was brought to light in India on 11th December, 2013 when a landmark judgment was passed by the Supreme Court that quashed the judgment of the High Court of Delhi and upheld the validity of the S.377 of the Indian Penal Code, 1860.  India is a country of traditions ,values, culture, religion and righteousness play an important role in the country. Following the Supreme Court judgment upholding, homosexuality in India was condemned extensively. Taking into regards the legal morals of the country, homosexuality is considered as an immoral sexual behavior which is still not recognized in our social ethos despite having some sections of people support it as part of Fundamental Right to Life.

Many countries claim it to be the violation of human rights and interference in the private well-being of the people. Violation of human rights cannot be presumed because human rights basically talk about liberty and dignity of life and all such liberties are subject to a restriction.

Considering the change in time, thinking of the coming generations, culture and acceptability in this era of globalization, homosexuality is no more a topic of less commonality. The world is progressing and modernization has taken place. We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values.Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind. It must shake off the inhibiting legacy of its colonial past and assume a dynamic role in the process of social transformation. We cannot therefore mechanically accept as valid a legal rule which found favour with the English courts in the last century when the doctrine of laissez-faire prevailed.

The wisdom of Supreme Court in recent Naz Foundation case should not be faulted with. It is true that in as much as 114 countries in the world have accepted homosexuality and other sexual orientation but at the same time 83 countries in the world including India still have criminalized it being not in conformity with public moral and social health.

The Supreme Court said that Parliament can repeal this provision and is propriety and desirability demands but so long as it is in the statute book, it cannot be struck down being unconstitutional.

However the ground reality cannot be ignored that at least homosexuality in private between consenting adults should not be a matter inviting concern and rigors of criminal law otherwise a person can be prosecuted and punished only for his sexual orientation. Moral policing in this field cannot be welcomed rather that must be avoided and so long as the provision remains in the statute book and is not repeated or an explanation as envisaged in Delhi High Court judgment is added, which is now is overruled. Necessary directions to the police and law enforcing agencies should be issued by the government to respect a persons’ right to privacy meaning right to be left alone and pursue his sexual preferences in private and in the company of consenting major partner.