#377 UNNATURAL

OFFENCES: Whoever
voluntarily has carnal intercourse
against the order of nature with
any man, woman or animal shall
be punished with 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.
EXPLANATION:
Penetration is sufficient to
constitute the carnal intercourse
necessary to the offence
described in this section.
PUBLIC PERCEPTION
SUPPORT –
In 2008 Additional Solicitor General
PP Malhotra said: "Homosexuality is a
social vice and the state has the power
to contain it. Decriminalising
homosexuality may create breach of
peace. If it is allowed then [the] evil of
AIDS and HIV would further spread and
harm the people. It would lead to a big
health hazard and degrade moral values
of society." This view was shared by the
Home Ministry.
 The 11 December 2013 judgement of
the Supreme Court, upholding Section
377 was met with support from religious
leaders.
Baba Ramdev, India's well-known
yoga guru, after praying that journalists
not "turn homosexual", stated he could
"cure" homosexuality through yoga and
called it "a bad addiction”.
 The Vishwa Hindu Parishad's vice-
president Om Prakash Singhal said,
“This is a right decision, we welcome it.
Homosexuality is against Indian culture,
against nature and against science. We
are regressing, going back to when we
were almost like animals.
 Maulana Madini of the Jamiat
Ulema echoes this in the article, stating
that “Homosexuality is a crime
according to scriptures and is unnatural.
People cannot consider themselves to
be exclusive of a society... In a society,
a family is made up of a man and a
woman, not a woman and a woman, or
a man and a man.”
 Reverend Paul Swarup of
the Cathedral Church of the
Redemption in Delhi in stating his views
on what he believes to be the
unnaturalness of homosexuality, stated
“Spiritually, human sexual relations are
identified as those shared by a man and
a woman. The Supreme Court’s view is
an endorsement of our scriptures.”
OPPOSITION AND CRITICISM
In 2006 it came under criticism from 100 Indian
literary figures, most prominently Vikram Seth. The law
subsequently came in for criticism from several
ministers, most prominently Anbumani Ramadoss
and Oscar Fernandes. In 2008, a judge of the Bombay
High Court also called for the scrapping of the law.
The United Nations said that the ban violates
international law. United Nations human rights
chief Navi Pillay stated that "Criminalising private,
consensual same-sex sexual conduct violates the rights
to privacy and to non-discrimination enshrined in the
International Covenant on Civil and Political Rights,
which India has ratified", and that the decision
"represents a significant step backwards for India and a
blow for human rights.", voicing hope that the Court
might exercise its review procedure.
VIEWS OF POLITICAL PARTIES
SUPPORT –
Rajnath Singh, a member of the
ruling party BJP and the Home Minister,
is on record shortly after the law was re-
instated in 2013, claiming that his party
is "unambiguously" in favour of the law.
Yogi Adityanath, BJP MP,Chief
Minister of Uttar Preadesh, endorsed
Radev's comments, saying he
welcomes the verdict and will "oppose
any move to decriminalise
homosexuality."
 The Samajwadi Party made it clear
that it will oppose any amendments to the
section if it comes in Parliament for
discussion, calling homosexuality
"unethical and immoral." Ram Gopal
Yadav stated that they support the
Supreme Court decision as "It is completely
against the culture of our nation."
The Congress party led UPA
government also supported the law during
the initial Naz Foundation case, stating that
gay sex was 'immoral' and that it cannot be
decriminalised.
VIEWS OF POLITICAL PARTIES
OPPOSITION –
Finance Minister and BJP
member Arun Jaitley has a different
view from Rajnath Singh, saying that
"Supreme Court should not have
reversed the Delhi High Court order
which de-criminalised consensual sex
between gay adults" and "When millions
of people the world over are having
alternative sexual preferences, it is too
late in the day to propound the view that
they should be jailed.”
 BJP spokesperson Shaina NC said her
party supports decriminalisation of
homosexuality. "We are for decriminalising
homosexuality. That is the progressive way
forward.”
The RSS revised its position, the leader
Dattatreya Hosabale reportedly saying, "no
criminalisation, but no glorification either.“
The Aam Aadmi party is disappointed
with the judgment of the Supreme Court
upholding the Section 377 of the IPC and
reversing the landmark judgment of the
Delhi High Court on the subject.
 In December 2013, Indian National
Congress vice-president Rahul
Gandhi came out in support of LGBT
rights and said that "every individual had
the right to choose". He also said "These
are personal choices.
Senior Congress leader and former
Finance Minister P Chidambaram
expressed that "Section 377, in my view,
was rightly struck down or read down by
the Delhi High Court judgement by Justice
AP Shah.” Freedom, freedom of
expression. So let that be.
 Brinda Karat of the Communist Party said
the SC order was retrograde and that
criminalising alternative sexuality is wrong.
Shivanand Tiwari, leader of Janata Dal
United, did not support the Supreme Court
decision, calling homosexuality practical and
constitutional. He added that "This happens in
society and if people believe it is natural for
them, why is the Supreme Court trying to stop
them?“
Derek O'Brien of the Trinamool
Congress said that he is disappointed at a
personal level and this is not expected in the
liberal world we live in today.
LEGISLATIVE ACTION
On 18 December 2015, Lok Sabha member
Shashi Tharoor of the Indian National Congress,
whose leaders Sonia Gandhi and Rahul Gandhi
had earlier expressed support for LGBT Rights,
introduced a private member's bill to replace
Section 377 in the Indian Penal Code and
decriminalise consensual same-sex relations. The
bill was defeated in first reading, 71–24. For his
part, Tharoor expressed surprise at the bill's
rejection at this early stage. He said that he did not
have time to rally support and that he will attempt
to reintroduce the bill. In March 2016, Tharoor
tried to reintroduce the private member's bill to
decriminalise homosexuality, but was voted down
for the second time.
RIGHT TO PRIVACY
Sexual orientation is an essential attribute
of privacy. Discrimination against an individual
on the basis of sexual orientation is deeply
offensive to the dignity and self-worth of the
individual. Equality demands that the sexual
orientation of each individual in society must
be protected on an even platform. The right to
privacy and the protection of sexual orientation
lie at the core of the fundamental rights
guaranteed by Articles 14, 15 and 21 of the
Constitution.
 Their rights are not "so-called" but are real rights
founded on sound constitutional doctrine. They inhere
in the right to life. They dwell in privacy and dignity.
They constitute the essence of liberty and freedom.
Sexual orientation is an essential component of
identity. Equal protection demands protection of the
identity of every individual without discrimination.
 Navtej Singh Johar Vs Union Of India
The judgement draws parallels to the Privy Council’s 1929 verdict
in Edwards vs Canada (AG) that allowed for Women to sit in the
Senate of Canada. Both cases are imperative to the question of
full legal personage of the two marginalized sections of society,
namely gender minority (women) and sexual minority
(LGBTQIA). Section 377 of the Indian Penal Code – significantly
reduced personhood and liberties of LGBTQ citizens as they were
denounced of their right to pursue consensual intimate relations,
sexual expression and choice, which is currently reinforced by the
Right to Privacy. The judgement further stands as an example for
the court's capacity to counteract societal exclusion and
marginalization of the community by upholding Articles 14, 15, 19
and 21 of the Constitution of India which promises liberty of
thought and expression, equality of status and opportunity and
fraternity assuring the dignity of the individual. In doing so, the
petitioners, namely, Navtej Singh Johar, Sunil Mehra, Ritu Dalmia,
Aman Nath and Keshav Suri – have become India’s ‘Valiant Five’.
SUPREME COURT VERDICT
Consensual adult gay sex is not a crime
and article 14 and 21 of Indian Constitution
contradict the present view of Section 377.
 Section 377 of the Indian Penal Code is
a section of the Indian Penal Code introduced
in 1861 during the British rule of India.
Modelled on the Buggery Act of 1533, it is
used to criminalize sexual activities "against
the order of nature". On 6 September 2018,
the Supreme Court of India decided to
announce that the application of Section 377 to
consensual
homosexual sex between adults was
unconstitutional, "irrational, indefensible and
manifestly arbitrary", but that Section 377
remains in force relating to sex
with minors, non-consensual sexual acts,
and bestiality.
IN A NUTSHELL ..
SOURCES:
1. Wikipedia
2. The Times of India
3. THE STATESMAN

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