Introduction

1. For most of human history, homosexuality has been considered a sin across religions and was punished severely.
2. While earlier perceived as a psychological problem, a dominant view emerged  in the 20th century, that homosexuality was inborn and therefore not immoral, and it was not a disease.
3. However, even in the 21st century, there is still no unanimity on the issues and resistance persists, despite it being decriminalised in many countries.
4. In India, its Section 377 of the Indian Penal Code, a biblical provision of law in 1861, criminalized sexual activities “against the order of nature”, including homosexual activities.

Section 377 of the IPC

1. It reads – 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.
2. The terms “carnal intercourse” and “against the order of nature” are not defined precisely anywhere in the code.

Delhi HC exclusion: Naz Foundation Vs. Govt of NCT of Delhi

1. In a landmark judgement in 2009, the Delhi high court excluded acts of carnal intercourse by consenting adults in private from the purview of Sec 377.
2. The court found Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the Constitution.
3. Additionally, it was found to be in violation of the right to privacy and dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and Articles 14 and 15)

SC upholds the validity of 377 in 2013: Kaushal Kumar vs. Naz Foundation

1. It set aside the 2009 judgement of the Delhi High Court stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse “against the order of nature”.
2. The bench took a literal and technical view rather than the wider sweep that the Delhi high court had applied.

NALSA judgement, 2014

The SC held that-

1. ‘Transgenders’, even though insignificant in numbers, are entitled to human rights.
2. Sec 377 had been an instrument of harassment and abuse.
3. Advocated the adoption of the Yogyakarta Principles (norms on gender identity and sexual orientation adopted by human rights experts in 2006)
4. It was unreasonable to advance the view that constitutional protection is available to a group based on its size.

SC favours Individual Privacy: Puttaswamy vs. Union of India Case

1. In review petition, the SC ruled that “sexual orientation” is an essential attribute of “identity” and “privacy”.
2. It termed discrimination on the basis of sexual orientation as “deeply offensive to the dignity and self-worth of the individual”.
3. It recognised that the rights of India’s sexual minorities are founded on “sound constitutional doctrine” effectively making Section 377 unsustainable.
4. In principle, it maintains that sexual orientation must be protected and lies at the heart of the fundamental rights guaranteed by the Constitution under Articles 14, 15 and 21.

Should Sec 377 be repealed?

Yes, because

1. It is discriminatory. It violates rights granted under Art. 14, 15 and 21 of the constitution.
2. A person’s freedom and natural inclination cannot be atrophied unless the restrictions are determined as reasonable.
3. Public health evidence indicates a clear relationship between lack of social acceptance and legal rights with substance abuse, violence, isolation, and mental illness. This violates a person’s right to a healthy and dignified life.
4. It causes great humiliation and harassment. LGBTs face a constant threat of blackmail (by acquaintances) and arrest. Life becomes humiliating, as the LGBT are socially ridiculed and mocked at.
5. Global trends show that many countries, including France, Spain, Canada, the US, Britain, Nepal etc have decriminalised homosexuality. India is among the conservation group including Afghanistan, Pakistan, Saudi Arabia etc.

No, because

1. It is against the law of nature, which supports sexual intimacy only between a male and a female.
2. Many child rights activists claim that Sec 377 is a deterrent against sexual abuse of children.
3. It violates the moral code of most religions.
4. Public display of (homosexual) affection can cause great unease in conservative societies like India.

Way Forward

1. The argument against Sec 377 must, ideally, be based on the right to equality (and non-discrimination) and not just on the right to privacy.
2. A rights-based framework is intricately tied up with India’s quest for social and economic development. LGBTs must have equal rights in a democracy. They deserve a dignified life.
3. Public display of affection should be tempered by reasonable restrictions.
4. Judiciary needs to expand the ambit of this discussion to include other issues such as the right to form partnerships, inheritance, employment equality, protection from gender-identity-based discrimination etc.
5. The norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia, known as Yogyakarta Principles should be adopted.