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Section 377 of the Indian Penal Code

In 2013, a two-judge bench of the Supreme Court upheld Section 377 of the Indian Penal Code, which discriminates against a section of individuals in society on the basis of their sexual orientation and placed the responsibility of repealing it on the Parliament. The top court had set aside a historic Delhi High Court judgment that had decriminalized homosexuality.

Supreme Court, in Suresh Kumar Koushal v. Naz Foundation (2013) case, set aside the Delhi High Court judgment and said that homosexuality or unnatural sex between two consenting adults under Section 377 of IPC is illegal and will continue to be an offense. The court said that Section 377 did not suffer from any “constitutional infirmity”.

The Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people.

Section 377 of the Indian Penal Code dating back to 1860, introduced during the British rule of India. Unnatural offences—whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with impris¬onment of either description for a term which may extend to ten years, and shall also be liable to fine. Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at Transgender men.

Many religions consider homosexuality a sin, a conduct against the order of nature, and hold that an individual falling in this category be considered a criminal. However, by the end of the 19th century, a strong opinion emerged that it was a pathological condition and that the person should not be blamed for such conduct. Later, a dominant view emerged that homosexuality was inborn and therefore not immoral, and it was not a disease. However, there is still no unanimity on the issue and individuals continue to hold diverse opinions

We are living in a democratic society governed by our Constitution. And the Constitution gives certain fundamental rights to citizens and one of the rights is the choice to lead the life one wants. Nobody has the right to disturb and intrude into someone’s private life. In the context of rights enshrined in the Constitution nobody should be harassed. At the same time, they should be aware that such activities are private, to be conducted within their homes.

One’s sexual orientation is undoubtedly an attribute of privacy.As far as the private affair of an individual is concerned, within the four corners of the house, nobody has the right to interfere into it. Everybody has the right to lead the life they want. Speaking in the context of the Constitution nobody has the right to say how an individual should conduct his life, what to eat and what not to eat, what to wear, or comment about people’s sexual activities.

Recently, a nine-judge Constitution bench of the Supreme Court accorded the status of a fundamental right to one’s right to privacy. The Supreme Court in another judgment in another case of instant triple talaq stated as the privacy judgment wherein personal laws have been reaffirmed as being protected under the Constitution. The court has also observed that this right cannot be abrogated by a community in the name of majoritarian view. The giant leap for Right to Privacy could be a small step towards decriminalizing the draconian Section 377 of the Indian Penal Code, offering a ray of hope to the LGBT community.

Source: Times of India, The Hindu