Sec 377 and the new changes

WHAT IS SECTION 377?

Sec 377 was introduced in the year 1861 during the British rule of India which criminalizes the act of homosexuality which means sex with the same gender. Thus it states that whoever out of their own free will has carnal intercourse against the system of nature shall be punished with imprisonment of life.

There were many debates regarding this and people continuously fought for legalizing Sec 377.

HISTORY

The movement to repeal Section 377 was led by the Naz Foundation (India) Trust a non-governmental organization, which filed a law suit in the Delhi High Court 2001, seeking legalisation of homosexual intercourse between consenting adults. This was the second such petition, the first filed in 1994 by AIDS Bhedbhav Virodhi Andolan.  In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court of India against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits.

Naz Foundation v. Govt. of NCT of Delhi is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by Indian’s Constitution. The verdict resulted in the decriminalization of homosexual acts involving consenting adults throughout India. This was later overturned by the Supreme Court of India in Suresh Kumar Koushal vs. Naz Foundation, in which a 2 judge bench reinstated Section 377 of the Indian Penal Code. However, even that was overturned by a 5 judge bench in Navtej Singh Johar v. Union of India  in 2018, decriminalizing homosexuality once again. 

DELHI HIGH COURT’S 2009 VERDICT 

It was an NGO named Naaz Foundation which first raised the issue of Section 377 and approached Delhi HIGH Court in the year 2001 which later decriminalised intercourse between same-gender considering as illegal.

The judgement of 2009 was upturned in 2013 by the apex court which had also dismissed the plea for the petitions which were filed and were pending.

The court then commenced the hearing on the fresh writ petitions which challenged recriminated consensual gay sex between two adults.

SUPREME COURT FINAL JUDGEMENT

On 6^th September, 2018 supreme court passed a final order in favour of LGBTQ community. The judgement was made by five-judge Constitution Bench of the Supreme Court led by Chief Justice of India (CJI) Dipak Mishra and comprising Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

The judgement recites that gay sex is not a crime believing on the fact that sexual orientation is very normal and people do not have control over it. And also, it is no longer an offence under Section 377.

Justice D.Y. Chandrachud also recited that “What is the ‘order of nature? The sate cannot decied the boundaries between what is permissible or not. Section 377 is based on deep-rooted gender stereotypes. It is a majoritarian impulse to subjugate a sexual minority to live in silence.”

Thus, it is a success for the LGBTQ community (gay, lesbians, bisexual, transgender) who have been fighting for their rights since very long. The SC in its judgement said that the law must be interpreted as per the need of changing times.

Section 377 is irrational and incomprehensible as it shackles the right to equality for the LGBT community as LGBT community deserves equal right and should be treated equally. Social morality cannot violate the rights of any individual. Every individual has a fundamental right to privacy, and sex is private which thereby applies fully to the LGBT community. These were the statements given by CJI Dipak Mishra.

Ashok Row Kavi, LGBT rights activists and also a founder of Humsafar Trust declared that they finally got justice and are finally “Azaad in Azaad Hind” after the apex court judgement.

CONCLUSION

After a long fight, LGBTQ community finally got their rights and gained victory. They can now live a life of dignity and are not looked down in  society. There were many debates and it took longer to reach a final judgement. But India proved its sovereignty once again and came to the conclusion that every individual deserves his or her rights to be fulfilled.

But still, now acceptance needs to come from people as we are poor in accepting people but quick to judge them. LGBTQ community is still fighting for their acceptance in society.