Section 377: A Call to Conscience

The Indian judiciary has yet another opportunity to redeem the injustice and discrimination the country’s LGBT community has been subjected to for decades.

As a five-judge Supreme Court constitution bench begins hearing petitions on scrapping Section 377 of the Indian Penal Code, the Indian judiciary has yet another opportunity to redeem the injustice and discrimination the country’s LGBT community has been subjected to for decades. The bench can now consign to history an archaic and repressive piece of legislation that criminalises ‘unnatural’ sex and denies a minority community fundamental human rights.

Introduced into Indian statutes by the colonial British parliament in 1872, Section 377 penalises sexual activity “against the order of nature,” criminalising thereby consensual sex between adults. Last year marked the 50th anniversary of the United Kingdom repealing this odious law. India, however, continues to uphold it.

At a time when countries across the world are adopting more and more progressive and inclusive legislation, such as the legalisation of same-sex marriage, India’s refusal – on the basis of an outdated ‘moral’ framework – to decriminalise consensual sexual acts and relationships between adults is a blot on the republic.

It has been repeatedly argued that criminalising a person’s identity solely on the basis of sexuality stands in gross violation of Article 21, which guarantees every Indian citizen the right to life and personal liberty.

The continued denial of personal liberty to the gay community is particularly paradoxical when one considers the right to privacy judgment passed by the Supreme Court in 2017. The latest bunch of petitions challenging Section 377 draws from this earlier nine-judge bench Puttaswamy judgment, in which the court observed that “equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the constitution.” The bench observed that social morality changes over time. “The morality that public perceives, the constitution may not conceive of,” and that what is “natural to one may not be natural to another”.

In striking down the high court judgement, the Supreme Court four years later argued that only a minuscule proportion of the country’s population is made up of people with non-normative gender identities and sexual orientations, as if this supposedly insignificant minority had no right to protection. Further, the apex court said that fewer than 200 persons have been prosecuted under Section 377 in more than 15 years, which does not make Section 377 violative of Articles 14, 15 and 21 of the constitution. This court ignored the devastating effect the very possibility of prosecution has had on generations of Indians whose sexual orientation was criminalised and made the subject of threats, blackmail, ridicule and repression.

It needs to be emphasised that as a minority, the LGBT community, like other minority communities, needs protection – not prosecution, persecution and ostracisation.

For the queer community, it has been a long and hard struggle, a struggle to get rid of the criminal tag that the law has unjustly and outrageously foisted on them. Too much time has already been lost. The moment to undo the wrong and live up to the spirit of the constitution cannot be allowed to pass us by again. The Supreme Court must heed the urgency and not let down the country again.