Decoding the Debacle of Section 377
Image by Subhashish Panigrahi on Wikimedia Commons
The decriminalization of section 377, as it is dubbed, was a massive moment in the history of the queer movement in India. It was an affirming conclusion to the years of struggle that the community had been facing in the country. All of the petitions and hard work reached its pinnacle in the form of a Supreme Court verdict that legally validated the rights of the people of non-heteronormative orientations.
To clarify, section 377 was never decriminalized as a whole. That is a misconception. It was always just a part of the law that defined 'unnatural sex' as being inclusive of consensual acts of intercourse between two persons of the same sex.
It was in the early 2000's that efforts first started being made towards getting the right to choice in consensual intercourse being recognized in the country. Petitions were filed in the Delhi High Court by foundations but they were simply dismissed. In a momentous decision in 2009, the Delhi High Court first acknowledged the provisions within the section that violated several fundamental rights of an individual. However, this decision was subsequently overturned in 2013 by the Supreme Court.
Numerous steps were taken to combat this decision by the highest judicial authority in court. The verdict of the Justice K.S. Puttaswamy case (2017) which declared Right to Privacy as a fundamental right in the Indian jurisdiction was instrumental in the battle of decriminalizing the severely outdated notions of the section. A five judge bench, led by then Chief Justice of India Dipak Misra, was constituted to listen to the anguished voices of the queer community who had been struggling to get their basic rights recognized.
A part of section 377 was then decriminalized in 2018 when the Supreme Court ruled in the case of Navtej Singh Johar v. Union of India that the provisions violated the Right to Privacy that had been deemed a fundamental right by the apex court. The judgment proclaimed that consensual acts of intimacy could not be governed by the law of the country, that is a personal decision to be taken by the people in question only. Sexual autonomy was to be awarded to all citizens of the country.
However, it is important to mention that section 377 still defines non-consensual acts of non-heteronormative sex, offences against minors as well as animals, as a punishable crime.
In a more recent update, a parliamentary standing committee has recommended replacing section 377 entirely with a new law to criminalize non-consensual acts of intercourse. However, the draft of the proposed law does not cover non-consensual sexual acts committed against men, only mentioning offences against women and children. This would be a regressive step compared to the existing provisions that cover crimes against men in their ambit.
The decriminalization of section 377 was a major step forward in the fight for the recognition of the queer community and their rights in India. As it stands, the section provides wide-ranging protection against non-consensual sexual acts while also safeguarding the rights of homosexual individuals. The proposed law might reverse the progress we have made so far. One can only hope that the drawbacks will be amended in due time and cause no damage to the country.
References
https://timesofindia.indiatimes.com/india/what-is-section-377/articleshow/66067994.cms
By- Ishita Kisku & Nishita Sinha
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