Section 377: Unnatural Offences
There are three main categories of sexuality in India: bisexuality, heterosexuality and homosexuality. Homosexuality is still a subject of taboo in the civil society and the government as well. Homosexuality is defined as, sexual attraction to one’s own sex. Homosexuals are not acceptable in the society till now. People consider homosexuality as a psychological disease which makes it even more unacceptable in the present frame of the society. Homosexuality is considered a taboo in a largely conservative Indian society which appears to be divided on the controversial issue. Freedom loving people (not necessarily belonging to Lesbian, Gay, Bisexual and Transgender or LGBT community) want homosexuality de-criminalised but many still consider it a “deviant behaviour” and not merely a question of one’s sexual orientation or preference.
The government in order to ensure balance in the society has criminalised homosexuality. For this purpose the section 377 was introduced in the year 1862. According to Section 377, whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished. It is illegal for two people of the same sex to have sexual inter course.
This section is believed to infringe the rights of the people. It does not give the people the freedom they deserve to choose their partner. The campaign in order to decriminalise the Section 377 of Indian Penal Code, 1860 was started by the AIDS Bhedbhav Andolan in the year 1991. As the case prolonged over the years the campaign was revived by the Naz Foundation trust, which stood for decriminalising sexual intercourse between two consenting adults of same sex. The Delhi High Court in the year 2009 over gave a significant decision and decriminalised Section 377 by calling it violative of Article 14. 15 and 21 of the Indian Constitution.
The decision of the Delhi High Court allowed sexual intercourse between two consenting adults, however it also gave an important remark, “the provisions of Section 377 will continue to govern non-consensual penile, non-consensual vaginal sex and vaginal penile sex involving the minors.” It was contended that Sec 377 violated right to live with dignity and privacy, which are two dimensions of Article 21.
In the year 2009 the court repealed its decision by re criminalising Section 377 in the case of National Legal Services Authority v Union of India. The Rights of transgender People Bill, 2014 was introduced and passed in Rajya Sabha but is still pending before the Lok Sabha after the decision of the court. On 2nd February, 2016 the Naz Foundation submitted its founding before a five member bench of the Supreme Court.
The contentions to re criminalise the Section 377 are:
- This will lead to spread of harmful diseases like AIDS.
- It will make Prevention of Immoral Trafficking redundant
- It will turn out to be a huge health hazard and degrade the moral values of the society.
- The religious corners pleaded for criminalisation in order to continue proper functioning of the society.
Thus, the Section 377 continues to have profound impact on the dignity and privacy of the LGBT individuals. This continues to threaten the enjoyment of family life of the homosexuals across the country.
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