The Return Of Section 377

Dummies' guide to Section 377 of the IPC and why everyone’s outraged by today’s judgment.

WrittenBy:Visvak Sen
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The Supreme Court just upheld an archaic and draconian law (Section 377, Article 14) dating back to the British Raj that criminalises non-vaginal sexual intercourse –  which pretty much means sex between homosexual men and oral sex is illegal. The Delhi High Court had deemed the law unconstitutional in a 2009 verdict, but the Supreme Court just overturned the ruling and upheld the section and felt that such a judgment would be encroaching on the prerogative of the legislative.

 What exactly does Section 377 say? And why’s it called “draconian”?

 This is the Oxford Dictionary entry for the word draconian:

|drəˈkəʊnɪən, dreɪ-|

adjective. (of laws or their application) excessively harsh and severe.

And once you take a look at what Section 377 says, you’d find the word describes the law rather fittingly.

According to Section 377, “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.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

So what made the Supreme Court look at Section 377 and pass judgment?

 It all began with the Naz Foundation’s 2001 PIL seeking decriminalisation of gay sex among consenting adults. The case was then subject to an exhilarating ride on the Indian legal merry-go-round. It was thrown out, reviewed, the review was thrown out, the apex court was approached, the apex court referred it back to the High Court.

In 2009, the High Court decriminalised consensual gay sex among adults – to much exultation. It’s only after this that the Supreme Court was approached.

Who were the vigilant crusaders who challenged the judgment in the Supreme Court?

 The primary appellant is an astrologer named Suresh Kumar Kaushal. He was supported by senior BJP leader, BP Singhal (who has since died) and a smattering of religious organisations such as the All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance. Also involved was the Delhi Commission for Protection of Child Rights.

Wait, what? The Delhi Commission for Protection of Child Rights?

We don’t know what they were doing there either considering there’s an entire law dedicated to child rights in this context called the Protection Of Children from Sexual Offences Act 2012.

What is the government’s take on all this?

 They haven’t entirely made up their minds yet. The Home Ministry thinks gay sex is immoral and a reflection of a perverse mind and that its decriminalisation would lead to moral degradation. The Health Ministry disagrees and considers Section 377 a major barrier to their efforts to prevent the spread of AIDS.

In fact, over the course of the trial in the Supreme Court, government representatives regularly made contradictory submissions to the court. Additional Solicitor General, PP Malhotra, appearing on behalf of the Home Ministry pleaded for the Supreme Court to protect India’s moral code by upholding the law.  The Attorney General, Goolam Vahanvati said that the Government accepted the correctness of the Delhi High Court’s judgment.

What happens now?

 We wait indefinitely for Parliament to take up the issue and introduce legislation which deals with Section 377. Or the LGBT community could take up Baba Ramdev’s generous offer to join him at his ashram for a “cure” to their affliction. This “treatment” will presumably be just as effective as his potion which guarantees pregnant women male babies.


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