Article 377 of IPC: Decriminalising homosexuality, a wrong is righted

In 2013, the Supreme Court had overturned the HC, finding it "legally unsustainable.

In the judgment that revoked provision of Article 377 of the Indian Penal Code that criminalised consensual same-sex relationships in September this year, Justice Indu Malhotra wrote: “Members of the LGBT community and their family members are owed an apology from society for being denied equal rights over the years.”

The road to the sexual rights of the LGBTQ community being recognised in this country has been a bumpy one.

The Delhi High Court (HC) had decriminalised homosexuality in 2009, saying that the colonial era law was incompatible with Articles 14, 15 and 21 of the Constitution.

However, in 2013, the Supreme Court had overturned the HC, finding it “legally unsustainable”. Other challenges, however, remain.

ALSO READ: Abrogation of Section 377: Law can only change law, not behaviour of people

There is no legal provision for same-sex marriages, LGBTQ couples or singles are still not allowed to adopt children, and discrimination at jobs, education and at homes is still too common.

In fact, even health care professionals have been accused of discrimination towards people from the community, at times classifying homosexuality as a mental health issue.

The road ahead is as much a legal route as a social one. While legal hurdles might now become relatively easier to overcome, deeply entrenched social prejudices are more difficult to combat. Only a society that fully embraces all sexual minorities can be expected to apologise in earnest.

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Abrogation of Section 377: Law can only change law, not behaviour of people

It will take decades before we can actually eradicate the stigma of being gay or transgender, as a homophobic population will continue to judge and discriminate.

Business Standard :On September 6, India saw victory of law and love. The five bench Supreme Court unanimously passed an order on IPC Section 377, making the country really free for everyone – including gays and transgenders for the first time since 1861. India has become a better country since then. Many trans and homo children, both girls and boys, have been violated within families and their parents have long lived in constant fear of their children being considered criminal. The Supreme Court ruling will give solace to them.

But the law can only change the law, not attitudes and behaviour of people. It will take many more years or decades before we can actually eradicate the stigma of being gay or transgender. While many remain indifferent, the trans and homophobic population will continue to judge and discriminate. At best, many of them will be indifferent and ignore their existence and at worst, we will continue to see hate crimes and violence targeting them. Moral policing often does not have relationship with what law says or what the reality is. The following opinions, which do not have any grounding based on facts and experience, typify the mindset of several religious leaders and fanatics: “They can be what they want to but let them not advertise it”, “So now they are going to ask for gay marriages and spoil our culture”, “All this has been brought to our country from the West”. So on and so forth.

ALSO READ: How the SC judgement on Section 377 ties constitutional values with emotion

Changing such thought processes is an uphill task and can be achieved if it is tackled effectively on three fronts: increase solidarity from within and empower the community, sensitise and engage with policymakers, and educate masses through platforms that involve members of the community and the general population. As long as the general population does not interact and engage with community members, it will not be aware that there is a human being behind a gay or transgender identity. And that is simply not a matter of just sex or gender!

In one of our projects, which serves 6,000 transgenders across six sites, we were able to document some 450 cases of violence and discrimination within a span of about two years. In fact, in every discussion we had with them, we were apprised about insults and violence they faced. We also found that only cases involving extreme physical brutality that were filed as FIRs with the police, were reported as violence by the law keepers...Read More

How Section 377 verdict paves way for those devoid of mental health rights

The Mental Healthcare Act, 2017 was quoted by three of the judges in the Section 377 verdict.

It is befitting that mental health was a key focus and an essential aspect of the inalienable rights accorded to the LGBTQIA+ community on September 6, 2018. The Mental Healthcare Act, 2017 was quoted by three of the judges in the Section 377 verdict. The colonial-era penal code was questioned against the newer definitions of functioning, illness and finally, rights.

The country’s mental health professionals and premier mental health institutes have often obfuscated and erased their own history of deeply problematic practices and thoughts that have left thousands with irreparable damage. In mere hours after the judgment, stories had started pouring in about the unquestioned malpractice the community had often been subjected to. 

There were transgender individuals who were given electroconvulsive therapy, gay men who were treated for ‘invisible disorders in their brain’ and structured programmes which were created to annihilate and repress any aspect of a person that was non-conforming. The phrase ‘conversion therapy’ doesn’t begin to capture the horror that the marginalised have been subjected to.

ALSO READ: How the SC judgement on Section 377 ties constitutional values with emotion

Most transgender persons are familiar with humiliating psychometric tests used to assess gender dysphoria before they could assert their own right of choice and self-determination. The assessment would often be reflective of the psychiatrist’s agreement with the choice, rather than an objective report. Psychiatrists and psychologists would attempt to ‘counsel’ them against it, or treat it as a strong case of denial. 

Even today, there is no model of sensitisation or caution in this assessment process and there is often a reported sense of violation and harassment. In 2018, the World Health Organisation finally questioned the inclusion of gender dysphoria as a mental disorder and shifted it to the sexual health chapter instead, removing the idea of treatment being associated with gender non-conformity.

The mental health profession has often been critiqued for its comfort with diagnostic labels and its understanding of non-normative as solely a disorder. These understandings have been more rapidly changing and questioned due to the work of activism as well as more queer therapists coming to the forefront. 

However, given the silos that therapists often work in, percolation of alternative understandings takes time and is inhibited by the nature of power structures within the medical profession. The external frameworks used by the mental health profession have had the capacity to oppress the marginalised, just as much as they have provided safe spaces....Read More

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How the SC judgement on Section 377 ties constitutional values with emotion

Supreme Court's decision to decriminalise homosexuality is incredibly heartfelt and vindicates the dignity of LGBT people.

What does it mean to love in law? On Thursday 6th September, my social media feeds lit up with heart emojis, #lovewins hashtags, and status updates expressing love in response to the Supreme Court of India’s unanimous decision to decriminalise gay sex. There was a collective sigh of relief as the court lifted the weight of criminality from those who lived in the shadow of India’s law criminalising homosexuality, specifically section 377 of the Indian Penal Code 1860 – a vestige of British colonialism.

Section 377 criminalises “carnal intercourse against the order of nature”. Broadly drafted, the law codifies Victorian morality to criminalise a range of consensual and non-consensual (“unnatural”) sexual behaviours, including homosexuality, bestiality, paedophilia, and rape. While very few people were prosecuted for same-sex sexual activity under the criminal law, it left sexual minorities vulnerable to extortion, harassment, and abuse. Thursday’s decision means that gay sex is now excluded from its reach.

In 2001, the Naz Foundation, an organisation working to end HIV/AIDS, petitioned the courts to “read down” the law to exclude consensual sexual activity between adults. The Delhi High Court agreed and held that criminalising gay sex violated rights to equality (Article 14) and privacy/liberty (Article 21) guaranteed by the Indian Constitution. However, the Supreme Court overruled this decision in 2013, holding that only parliament could change the law.

ALSO READ: Section 377 read down: When lovers of liberty rose to the occasion

This protracted litigation history culminated last Thursday when a newly constituted bench of the Indian Supreme Court repudiated their previous decision and decriminalised gay sex. And it did so with an endearing emotional depth.

Loving jurisprudence

Spanning almost 500 pages, the court’s jurisprudence is a valentine to India’s LGBT community. The court’s four judgments (from five justices) tie expansive constitutional values of inclusion, democracy, and dignity to emotional claims about compassion, respect, empathy, hope, and love.

Chief Justice Dipak Misra observed that punitive laws eroded the “right to choose without fear” a partner and realise “a basic right to companionship”. Citing one of the court’s prior decisions about privacy, he noted: …Read More

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Section 377 gone with the wind', Bollywood celebrates 'a new beginning'

As the Supreme Court junked Section 377 and made homosexuality legal in India, Hansal Mehta, Karan Johar, Arjun Kapoor, Kalki Koechlin and a host of other celebrities welcomed the judgement on Twitter.

The Supreme Court, on Thursday decriminalised consensual gay sex. A five-judge SC Constitution bench termed part of IPC's Section 377, which criminalises consensual unnatural sex, irrational, indefensible and manifestly arbitrary. The court also partly struck down Section 377 as violative of the right to equality.

The apex court believes that the homosexuals and the LGBT community deserve equal rights and discrimination on the basis of sexual orientation is a violation of freedom of speech and expression.

"The constitution is a dynamic document, having the primary objective of establishing a dynamic and inclusive society," the judgment of CJI Misra and J Khanwilkar.

The verdict is being celebrated across the nation. From celebrities to commoners, everyone welcomed the decision with elation.

Here’s how a few famous personalities from different spheres reacted upon the historic judgement:

Karan Johar said this decision is a “huge thumbs up for humanity and equal rights”.

Historical judgment!!!! So proud today! Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back! pic.twitter.com/ZOXwKmKDp5

— Karan Johar (@karanjohar) September 6, 2018

Hansal Mehta, director of "Aligarh", a film based on the story of Ramchandra Siras of Aligarh Muslim University, said the verdict was “a new beginning”.

A new beginning. The law is gone. The Supreme Court has done what parliament failed to do. Now it’s time for attitudes to change. Let’s rejoice but let us also reflect. This is a new beginning. #Sec377verdict https://t.co/2HQqIY7vUB

— Hansal Mehta (@mehtahansal) September 6, 2018...Read More

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History owes apology to LGBT persons for discrimination: Key points SC made

A five-judge constitution bench concurred on the matter and presented their opinion with various philosophical and constitutional rationale.

The Supreme Court on Thursday struck down Section 377 ofthe Indian Penal Code, decriminalising homosexual relationships between consenting adults. The judgement is being held as historic by the civil society as the apex court has for the first time ruled in favour of same-sex relationships.

A five-judge constitution bench concurred on the matter and presented their opinion with various philosophical and constitutional rationale.

ALSO READ: Supreme Court rules it's not a crime to be a homosexual in India anymore

Key takeaways of the historic verdict:

History owes an apology to LGBT persons for ostracisation, discrimination, the Supreme Court of India said

LGBT community possesses the same human and fundamental rights as other citizens

Sexual orientation a biological phenomenon, any discrimination on this grounds is violative of fundamental rights

So far as a consensual unnatural sexual act in private is concerned, it is neither harmful nor contagious to society

Courts must protect the dignity of an individual as the right to live with dignity is recognised as a fundamental right

CJI Dipak Misra, speaking for himself and Justice A M Khanwilkar, says denial of self-expression is akin to inviting death

Section 377 of IPC was a weapon to harass members of the LGBT community, resulting in discrimination

Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC

SC partly strikes down Section 377 as violative of the right to equality

IPC's Section 377, which criminalises consensual unnatural sex, irrational, indefensible and manifestly arbitrary

Homosexuality is not a mental disorder. It is a completely natural condition

Society cannot dictate sexual relationship between consenting adults as it a private affair

Denial of right to sexual orientation is akin to denial of right to privacy

Section 377 of IPC is violative of Right to live with dignit

India is signatory of international treaties on rights of LGBT and it is obligatory to adhere to treaties.

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SC judgement on Section 377 today; A look at the history of the archaic law

Amish Tripathi, a noted Indian mythologist, argues Section 377 does not reflect the traditional Indian attitude towards sex.

Section 377 of the Indian Penal Code is a relic of British India, having been introduced way back in 1861. It was modelled on a 16th-century British law called the Buggery Act, which was the first such civil law that criminalised certain kinds of sexual intercourse.

The Supreme Court is expected to pass its judgement on the legality of the section on Thursday. It has heard arguments representing all sides of the issue over the last few months.

Even though homosexuality was partially legalised in England more than fifty years ago, it stayed on as an illegal act in India. The Guardian reported last year that 72 countries and territories worldwide continue to criminalise same-sex relationships, including 45 in which sexual relationships between women are outlawed.

Amish Tripathi, a noted Indian mythologist, argues Section 377 does not reflect the traditional Indian attitude towards sex. It is, instead, he argues, a reflection of the British colonial mindset, influenced by medieval interpretations of Christianity.

He cites several examples and anecdotes from Hindu religious texts to make his point -- that LGBT rights were accepted in ancient India.

"Purush napunsaknarivajivcharachar koi / Sarv bhavbhajkapattajimohi param priy soi. (Any man, any transgender, any woman, any living being, as long as they give up deceit and come to me with love for all, they are dearest to me.)"

"These lines were said by Lord Ram in the Ramcharitmanas. He did not differentiate between man, woman or transgender. What does this mean? According to me, this shows our liberal ancient attitude towards LGBTs. And there are other examples in the Mahabharata too. Such stories were celebrated in ancient India and this, to my mind, reflects the liberal attitude we had towards LGBT communities," he elaborated.

Naz Foundation vs Govt. of NCT of Delhi

A historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section, legalising consensual homosexual activities between adults. The court said that the section goes against the fundamental rights of citizens while striking it down...Read More

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