Section 377 | Homosexuality | Human Rights | SC Verdict

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Section 377

Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1861 during the British rAJ. Modeled on the Buggery Act of 1533, it criminalized sexual activities “against the order of nature”, including homosexual sex. 

The movement to annul Section 377 was led by the Naz Foundation (India) Trust, a non-governmental organization, which filed a lawsuit in the Delhi High Court in 2001, seeking legalization of homosexual intercourse between consenting adults. This was the second such petition, the first was filed in 1994 by AIDS Bhedbhav Virodhi Andolan after the then superintendent of Tihar Jail Kiran Bedi disallowed the health workers for the distributions of condoms to the inmates.

In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter. Naz Foundation appealed to the Supreme Court of India against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to log a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits.

In 2006, the National AIDS Control Organisation logged an affidavit stating that the enforcement of Section 377 violates LGBT rights. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women’s and human rights activists called “Voices Against 377”, which supported the demand to “bend down” section 377 to exclude adult consensual sex from within its domain of consideration.

Well now after almost a decade of the struggle between the petitioners (practically the LGBTQI) and the judiciary, the former is allowed for a life with freer expression, rightful privacy, and negligible dubiety.

The judicial system is developed as an organizational authoritative intermediary body to primarily maintain a state of “Just living”, of the people of the communes in case of any kind of disputes. But in this matter, the dispute was between the commune and the judiciary itself which makes the unfoldings pretty much interesting and prominent. Before moving onto the further deets we would like to show you the turns and ups through this brief timeline-image.

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A Backtrace to Section 377…..

DISCLAIMER: This section’s going to be quite black and white, there is no entertainment or fun.

In Chapter XVI of Indian Penal Court, Section 377; It is stated, “Unnatural offences—Whoever voluntarily has carnal intercourse against the order of nature 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.”

In the statement of law, it is clearly stated as the term “against the order of nature” which I request you all to mark down just now before moving forward.

To move down to the roots of this act we will have to look over the Buggery Act of 1533, drafted by Thomas Macaulay around 1838. This law defined ‘buggery’ as an unnatural sexual act against the will of God and man.

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Then the next trace comes down to 1861, The Buggery Act of 1533 was repealed by Offences Against The Person Act 1861. This act notably widened the definitions for unnatural sexual acts and included homosexuality into it very clearly.

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In 1967 homosexuality was decriminalized in the UK by Sexual Offences Act 1967

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After reading through the timelined enforcements of laws, a brief string of questions would strike through every involved and sensible mind.

Well first, of course, is that when a law is devised it is derived from the concerns and cultures of the commune where it is to be enforced. And in some cases from the authority’s personal opinions as well.

Here, a law which was devised in England, introduced into the Indian Legal System which was apparently a complete forceful implementation. Not going to the fact that, whether or not it was needed in Indian Societies at that time. It could, or could have not been the need for the societies of India at that time. But one thing that is very clearly discernible here is that it was an undebated enforcement.

Secondly, going back to the term “order of nature” for sex. Well to be very quick over it, if a term with that ambiguity is used in legislation, if not anything, there has to be a frequent review over using such terminologies. Cause the order of nature can only be defined by nature completely, and can never be done by any bit of it, a human is certainly incapable of defining the order of nature. How can it, in fact? And even if it gains the coherence for explaining such matters through some fundamentals, to what extent it can be considered as a fact will always be undetermined. However, keeping in mind the idea of the organization of a commune or a society for humans we would have to, an extent, understand the systems, developed for running a complex organization with such diversities. And the judicial system is one of them.

And finally, just to help us understand the definition of a crime, let us just look at the definition of the crime.Section 377 Section 377

So if you follow the definition, any act that breaches the law is a crime. Well, I would consider it a very narrow definition. And if we look back to the origin of this word crime,

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you would easily see that this word has its origin from the means of judgment and offense where it is nowhere mentioned on what parameters, situations or limits. Now, if we try to understand the meaning through some cerebral process you would eventually be lead to define it as an act of dispute between two parties where one had to suffer the aftermath without any consent of his/her. Now, when you see the Section 377 of IPC through these definitions, you may find a situation where the sexual act or public display of affection, by two same-gender people, might steer the discomfort amongst the others. However, after holding such towering deformity to the insights regarding the sex, it is obvious to have ambiguous and unsettles laws. Hence, to what extent the sex or sexual act may harness the impact on the society is already a debatable issue, but a law has been in the run since decades on such a debatable subject. If not today, it has to create conflict someday.

The key solution that may be concluded out after this case is that every judiciary system must be reviewed frequently over a period of time span and that too by another independent system. For looking over the possible and required amendments through the course of time.

There is no question over the integrity of lawmakers, there should not be any on any plains. And we as a citizen must respect and trust over the systems organized for us. But for that to happen perpetually, the systems must also be reviewed and work progressively to not let this, “MUST-COME RESPECT” from the citizen, take even a slightest of a shift towards, “HAVE-TO-RESPECT” or in any form of obligation.

The lawmakers are humans, ANd there is no mistake to be stated as one by anyone, rather only the possibilities of improvements for better living of society. And that only, should be incessant.

By the way, you would surely be interested in Karan Johar’s statement after the verdict, if not into anything else for that matter. So here you go, his twitter feed.

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He is happy, and so are we. What about you?