Contradicted journey of IPC Section 377

Maimom Ranjit Singh *

More or less every Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community have heard of “Indian Penal Code (IPC) Section 377”, and what does it stand for, it’s actually meaning and its impact. It could be said that this community of people are not aware thoroughly about this law except those who have gone through it. In fact, the same phenomenon is seen amongst general community too.

This law hereinafter; IPC Section 377 terms as “Unnatural Offences, – Whoever voluntarily has carnal intercourse against the order of nature with, 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”, and penetrative sexual activity, other than penile –vaginal , between both heterosexual and same sex couples, is considered to be against the order of the nature and thus criminally proscribed under section 377.

As begin journey against the contradictory notion of section 377, a writ petition was filed for the first time in the High Court of Delhi in 2001 by “Naz Foundation”, a registered NGO, having its office at D-45, Gulmuhar Park, New Delhi as petitioner through Ms. Sharanjit Parma-advocate Versus Secretary Social Welfare- Delhi Secretariat, Commissioner of Police-Police Head quarters-New Delhi, Delhi State AIDS Control Society, National AIDS Control Organisation-(NACO), set up by Union of India, Ministry of Health and Welfare-New Delhi, Ministry of Social Welfare-New Delhi as Respondents respectively, in the matter of: infringement of fundamental rights guaranteed under article 14, 15, 19, 21 of constitution of India and in the matter of : Section 377 of the Indian Penal Code and in the matter of: Civil writ petition under article 226 of the constitution of India for the issue of a writ/order/direction in the nature of an appropriate writ/order/direction to the respondents to, the Hon’ble Chief Justice and his companion justices of this hon’ble court.

The petition is filed in public interest. It challenges the constitutional validity of section 377 of the Indian Penal Court (hereinafter “IPC Section 377”), which criminally penalize what is termed as “unnatural offences”, in so far as the provision affects private sexual acts between consenting adults. The petitioner is an NGO and working in the field of HIV/AIDS intervention and prevention.

As a part of their work, the petitioner began working with gay men and men who have sex with men (MSM). During its first five years of work, the petitioner came to appreciate the validity and benefits of universally recognized “Integrationist Policy”. This policy postulates that the best way to prevent the spread of HIV-infection is to promote, respect, and protect the human rights of vulnerable populations.

Strengthened human rights enable vulnerable populations to be better positioned and equipped to negotiate safer sexual behavior. As for instance, in 1997, the petitioner encouraged a number of gay men in the city of Delhi to meet regularly on a specific day. The meetings were ideally suited to disseminate information regarding issues affecting the population.

Gradually, the number of participants grew and support group had formed and began calling itself “Humrahi”. However, it has been a sad experience of the petitioner due to the discriminatory attitudes exhibited by state agencies towards sexually minority groups which often include gay men, MSM, lesbian and transgendered individuals. It is a fact that many LGBT activists and community members were victims of IPC Section 377.

According to the report brought out by the National Crime Records Bureau (NCRB) of India 1,491 people under section 377, including 207 minors and 16 women, were arrested in 2015. Well; since community’s voices is heard , all the respondents under enumeration six (6) that are wings of the Union of India bear the responsibility of ensuring the protection of the fundamental rights of life, privacy and human dignity for every member of the community.

Questions of law are also brought out by community activists, lawyers and supporters. Hereinafter; Private consensual sexual relations lie at the heart of the privacy zone protected by the right to liberty under article 21, criminalization of non-procreative sexual relations is unreasonable and arbitrary and therefore violative of article 14, Section 377 violates the prohibition of “sex discrimination” because equality on the basis of sexual orientation is implied in article 15, Section 377’s damaging impact upon the lives of homosexuals violates the right to life under article 21, Section 377’s criminalization of homosexual conduct is violative of the fundamental liberties guaranteed under article 19 (1) respectively.

Besides this, few scholars, anthropologists and historians revealed that section 377 is outdated and is a contrary law in the India’s ethos. Section 377 of Indian Penal Code is an archaic law that was introduced during British Colonial era in 1860s by a British officer named Lord Maculay. There was no evidence of criminalized sexual minority people in India before section 377 was introduced. And other politicians namely Congress leader Rahul Gandhi, P Chidambaram, Shasi tharoor, Trinamul Congress leader Derek O’ Brien, CPI (M) leader Brinda Karat, The Aam Aadmi party came out to support the LGBT community.

Atlas and Hurrah ! a landmark verdict of Delhi High Court regarding section 377 was revealed in 2009, saying that same sex relation amongst consenting adults are legalized, and almost all the community welcomed the verdict with gaiety and celebration. But in 13th Dec. 2013, the judgment was cancelled by the Supreme Court of India recriminalizing homosexuality. It was because of strong objections from religious leaders and anti LGBTQ politicians.

Notwithstanding, community activists, members and supporters organized many seminars, workshops, sensitization meeting, advocacy programs with different key stakeholders in different parts of the country. And recommendations from the programs were submitted to the concerned stakeholders.

Doing so, as a concrete efforts of the community and supporters a writ petition was again filed by Navtej Singh Johar and others in the Supreme Court of India bearing numbers as; writ petition (criminal) No.76 in 2016, writ petition (Civil) No.572 in 2016, writ petition (Criminal) No. 88, 100,101,121 in 2018 consecutively versus Union of India, the secretary Ministry of law and Justice as respondents. After in depth consecutive in the Supreme Court, it was decided to read down by a five (5) judges constitutional bench headed by Dipak Misra –Chief Justice of India, AM Khalwilkar, RF Nariman, Indu Malhotra and DY Chandrachud respectively.

Thus the most awaited landmark justice of the Supreme Court of India was received by LGBTQ community and supporters on 6th Sept. 2018. It was a wonderful and historic day for the sexual minority people indeed.