Decriminalising of section 377 of the IPC

By BYJU'S Exam Prep

Updated on: September 13th, 2023

Section 377 reflected the imposition of Victorian values and was never a reflection of Indian values. In this regard, the Supreme Court’s judgment has come out as a victory which will challenge the existing inequalities. Comment.

  • The colonial hangover, section 377 of the IPC was struck down by the supreme court of India upholding human rights and putting an end to the violation of constitutional rights of the homosexual community.
  • They are now permitted to live as an equal citizen sans harassment.
  • Four out of the five judges of Supreme Court overturned the archaic section which described consensual same sex relationship as “against the order of nature.”
  • The bench has retained only sexual activity with animals and any other such acts under the definition of “unnatural sex”, which can be see more like a version of Victorian morality.

What made this change imperative?

  • The constitution is an ever-evolving document and hence it is important that pragmatic interpretation time and again is given to combat inequality and injustice. As an evolving nation-state and a society, we had to take this stand for our own wellbeing and prosperity.
  • Also, there hasn’t been any full proof of homosexuality being abhorred in India in the past. Instead, the regional heritage and culture of India depict and immortalizes the homosexual culture. This is evident from stone carvings of Khajuraho, Ajanta and many more.
  • It clearly shows that fluid sexuality was present in India since ancient times.
  • According to historians, neither did Indian scriptures nor did ancient rulers criminalized sexual relations between same sexes. It was reported that during the 16th and 17th-century Mughal era, Transgenders were holding high positions in the courts.
  • Thus, homosexuality as an offense was developed only in the 1830s, the imposition of foreign morality on the Indian subcontinent.
  • Though the practice was not banned, it was criminalized. The law confirmed more with the Christian belief systems rather than Indian’s attitude towards homosexuality.
  • Historians opine that there certainly was some disapproval for homosexuality, but the homosexuals weren’t hounded.
  • The bid to get done with this law was initiated in 2009 by the Naz Foundation and the organization stated that section 377 was violative of the fundamental rights of the LGBT community.
  • While legally the law has been dismantled, we cannot deny the fact that in a country like India where religiosity and cultural prejudices hinder scientific temperament, homosexuality is still considered as a taboo and big no!
  • It is about time that the state realized that sexual minorities needed rights and protection to live a productive life with fulfilling relationships irrespective of gender biases.
  • An anti-discriminatory law in this regard would further propel efforts towards the fight against homophobia.
  • The judgment will go a long way in preventing social stigma and ostracism attached to this practice and affirming the fact that any such condition is not a mental disorder but something inborn in a human being.
  • India must keep in mind that as a major rising global power, her fight and role in this regard will set an example before countries and campaigners and will strengthen their voices. These may include Malaysia, where there was an incident of two women being canned; Singapore, where the court has ruled that the law outlawing same-sex relationships is valid etc.
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