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Decriminalization of Section 377: A War Half Won or Half Lost?

Sexual orientation is a pattern that describes sexual, romantic, and emotional attraction—and one's sense of identity based on those attractions. There are 3 most basic and most common categories under sexual orientation i.e. Heterosexuality (attraction to members of the opposite sex), homosexuality (attraction to members of the same sex), and bisexuality (attraction to members of both sexes). At different times and in different cultures, homosexual behavior has been variously approved of, tolerated, punished, and banned. In India, homosexuality has been a taboo since a very long time. But after the landmark judgment passed by the hon’ble Supreme Court on September 6, 2018, a five-judge bench had decriminalized section 377 of the Indian Penal Code, 1860 that previously criminalized ‘carnal intercourse against the order of nature with any man, woman or animal’, making it an ‘unnatural’ and punishable offence.

A petition was filed before the Apex court to re-look into the judgment namely Naz foundation v. Govt. of NCT Delhi passed by three judge bench. During the proceeding of the previous decision passed by hon’ble Judges, they came to a decision that the very Fundamental Rights provided to a person are violated by Section 377 of Indian penal code namely Article 14 which guarantees equality to every individual and Article 21 which guarantees life and liberty. However, the decision passed by the Hon’ble Supreme Court was a life changing decision for LGBTQ (Lesbian, Gay, Bisexual, and Transgender Queer) community. As we all know prior to the decision they had to struggle a lot to hide their reality from the society. They had to fake their personalities and present themselves to be a heterosexual because of the fear of the society that they would not be accepted by the people near them and they would not be treated equally. Now Homosexuals have a legal right to have a live- in relationship with the one they love. They are given the respect they deserve in the society, now they do not have to hide their relationship and live without any fear. As the court has categorically pointed out that Homosexuality is natural and not a disease and the government should spread awareness of the same and sensitize people on the rights of the LGBTQ community. These things might take some time as only decriminalization is just the first step.

But do we really think that the justice has been fully done? Do they have all the Rights they deserve or should I say it’s a war half won or half lost?

It’s been 2 year since the Judgment was passed by the Hon’ble Supreme court, but there are still many problems that the LGBT community faces till date. There has not been a complete acceptance by the society towards the community. Therefore, the Hon’ble Supreme Court also needs to ensure that stringent guidelines or measures to be adopted so that a proper and complete benefit can be given to the community. As in one of the recent cases, another important issue of the legality of live in relationship between people of the same gender has been questioned, couple has to file a writ before the Hon’ble court to get their right to stay together.

Since, the question of the legality of consensual penile non vaginal sexual intercourse was already deliberated upon by the Hon'ble Supreme Court of India in the case of Navtej Singh Johar and ors. vs. Union of India through Secretary, Ministry of Law and Justice. Even after the decision of the Hon’ble Supreme Court, Section 377 of IPC was not completely abolished or decriminalised by the court, still sexual intercourse in an unnatural way is considered as an offence like (Intercourse with animals or any other Unnatural way).

In the case the Court recognized the importance of the right to privacy and how it is essential for it to operate in the private, consensual conduct of homosexual adults. But still it would be considered as a war half lost because the most important aspect is missing for the LGBT community i.e. Marriage. We all know that marriage in India is considered as more of a sacrament than a contract. But herein, the community is provided with no such provision that could allow them to marry their loved ones till date. However, they have been struggling for their Right to Marriage from a long time; still the homosexual marriages are not legally recognizable in India. Due to which the decisions of the apex court has been rendered ineffective and incomplete as the sexual minorities are not afforded equal access to the institution of marriage.

Moreover, a very important decision was taken by decriminalization of Section 377 IPC. As a result of this judgment, the homosexuals can now live in a more dignified environment and can freely express themselves. It was done to provide “life” as defined under Article 21 of the Constitution of India i.e. No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 21 includes various rights under it, these rights have a huge importance in one’s life namely Right to marriage, Right to divorce, Right to approach court, Right to child Adoption and various other civil rights but these all rights are not provided to the community till date. However, there are various petitions filed before the Hon’ble Supreme Court wherein in one of the instance below a petition was filed before the Kerala High Court but before filing the petition in the High Court, the couple had approached the District Administration to register their marriage under the 1954 Act but the officer refused to register their marriage.

The same-sex couples wish to marry simply because they are part of a culture in which marriage has long been represented as the ideal institution of connection and commitment and this belief transcends the bounds of sexual orientation. They also believe that the choice of a marital partner is an important personal decision; which should be outside the control of others, particularly the State. Moreover, the discrimination on the basis of sexual orientation is clearly a violation of their Fundamental Right i.e. Discrimination of Indians on basis of religion, race, caste, sex or place of birth.

Advocates behind the decriminalization of section 377 namely Arundhati Katju and Menaka Guruswamy are now fighting a new war to legalize the marriage between the Gay couple. As a very common issue they face is when they will go out to look for a rented accommodation, they know that even after the judgment they will either have to stay in the closet to avoid the hate. This clearly presents that they are still struggling a lot to get their rights from the government. According to Guruswamy and Katju, the project has been divided into 2 aspects, namely the legal and the social aspect. Herein, the legal aspect deals with a number of rights related to life insurance and inheritance that you earn only when you are legally married. The social aspect is how our society believes that the logical conclusion to any “successful” relationship is marriage.

Furthermore, Section 5 of Hindu marriage act, 1955 which states the conditions of a valid Hindu Marriage provides as following: (iii) that the bridegroom must be at least 21 years old, and the bride 18 years old. The words 'bridegroom' and 'bride' obviously mean a heterosexual marriage. Moreover, under Special Marriage act it has been stated that to solemnize a marriage it has to be between a male and a female.

The Supreme Court of India in Navtej Singh Johar, has undoubtedly taken a boldly significant step towards a legal system. But, Article 21 of the Constitution of India guarantees the Right to Life and Personal Liberty to each and every citizen of India.  This right includes the Right to Privacy and Dignity. Choosing one’s life partner is a private subject, and it is a choice that an adult is entitled to make for himself.

Thus the straightforward argument in favor of same-sex marriage is that if two people want to make a commitment of marriage, they should be permitted to do so, and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity. However, only providing the option of civil unions and excluding marriages for same-sex couples is itself discriminatory, since it provides a class of people only an option that possesses an inherently lower status than marriage which is not enough for them to love happily with their loved ones. They must be provided all the Rights that they deserve.

Written By: Mr. Mukul Bansal, Final Year Student, LLB, Punjab University, Legal Intern at S. Bhambri & Associates (Advocates)

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