Will India decriminalise homosexuality? This is a decision that the government of India has left to the Supreme Court. The hearing of the constitutional validity of Section 377 (which makes homosexuality punishable by law) of the Indian Penal code took a crucial turn today. The Additional Solicitor General Tushar Mehta, representing Union of India, said “Won’t contest provision as regards consensual sex between adults and leaving it to the Bench, but seeks clarification on bestiality,” as reported by Bar and Bench.
“So far as the constitutional validity [of] Section 377 to the extent it applies to ‘consensual acts of adults in private’ is concerned, the Union of India would leave the said question to the wisdom of the Hon’ble Bench,” said a three-page affidavit filed by the Home Ministry.
The Hearing Continues
During the arguments at the Supreme Court, Maneka Guruswamy, who is advocating for decriminalizing homosexuality, began her submissions. Appearing for IIT students and alumni, she said that their prayer limits itself to consensual sex between adults and not about incest etc. “Articles 15 and 16 are the teeth of equality protection envisaged by Constitution. It is a violation of Article 15 because the discrimination revolves around the sex of the partner,” Menaka Guruswamy asserted.
A lot of gay men suffer from extortion, blackmailing especially in cases where people use dating apps, says Senior Advocate Anand Grover. We have dealt with huge number of such cases.
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She further added, “It is based on Victorian morality that people should have sex only with opposite gender since sex is only for procreation”, Menaka Guruswamy. She called for the protection of the LGBTQ community as this law affects the lives of this particular group immensely.
Senior advocate Anand Grover, also fighting to decriminalise homosexuality, started to present his arguments in the case. He dealt with the issue of access to justice to the LGBTQ community. He said, “A lot of gay men suffer from extortion, blackmailing especially in cases where people use dating apps, says Grover. We have dealt with huge number of such cases.”
What Is Section 377?
Section 377 of the IPC says “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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.” This is not a recent law but exists from the times of the British. In 1861 the then government put a law that criminalises sexual activities ‘against the order of nature’ and the ambit of this law extends to any sexual union involving penile insertion.
The Movement So Far
The battle for equal rights has been a long and tedious one. A landmark judgment in 2009, by the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. Right after many groups moved the Supreme Court for a direction against the verdict.
In 2013, the Supreme Court overruled the Delhi High Court’s order. It termed homosexuality criminal once again. The LGBTQ community in India was up in arms against this and the public in general carried out marches to call this a massive setback for human rights.
Supreme Court in January this year announced that they would reconsider the constitutionality of Section 377. In 2013, Supreme Court had criminalised homosexuality through a two-member bench. In 2016, six gay activists filed petitions for repealing the Section 377 act. They included Chef Ritu Dalmia, Navtej Singh Johar, journalist Sunil Mehra, Writer Aman Nath, Businesswoman Ayesha Kapur and Keshav Suri.