HOW SECTION 377 IS VIEWED BY OUR SOCIETY?

By Ritu Panhotra

Humans are the gregarious being who loves to be loved and accepted by their family and society. Their real purpose behind attaining this acceptance is vindicated by the fact that it’s the lone way of acquiring a mark of recognition and respect. Contrarily, a person who doesn’t covet to obey these societal norms is usually ousted by his own community. Different communities have their distinct ideologies on religion, caste, gender, status, etc. The subject matter which creates almost the same ‘impression of taboo’ on different communities is of ‘homosexuality’ and its related assumptions. Even in today’s 21st century, our societies have failed in healing themselves from the wound of this stigma.

The section 377 of IPC translates to the unnatural (not natural) offences which happens when a person with his/her own desire tries to establish the sexual intercourse with any man, woman or animal against the ‘law of nature’ is said to have committed this offence. People falling under this category are always considered as abnormal and wicked. The section 377 of IPC, drafted by Thomas Macaulay in 1838, came to effect in 1861 after the occurrence of Sepoy Mutiny in 1857. This law was carved on the design of “The Buggery Act of 1533”. ‘Buggery’ was then defined as an unnatural intercourse in conversely to the will of God and man. Additionally, it criminalizes both the anal penetration and bestiality. In broader sense, homosexuality was forbidden by the law. Homosexuality can be described as sexual orientation which makes the person feeling sexually or romantically attracted towards his or her own gender. In IPC, the punishment of life imprisonment or imprisonment for 10 years or fine is granted for this offence.

LGBTQ signifies for “gay, lesbian, bisexual, transgender and queer”. Our society has always stereotyped and scrutinized the LGBT community as if they themselves had made personal.

Every action on the social media can create a liability and should be carefully controlled and monitored. National Crime Record Bureau data confirms that cyber crime is on the rise and since many cases are not reported the actual number may be a lot higher than the statistics show. Technology is percolating in our lives faster than the awareness about its security threats. Almost every state in India has a Cyber Crime Investigating Cell where reporting of such matters can be done. they were instantly thrown behind the legal bars for the offence which contains “no wrong”. Even the law was abortive in safeguarding their interests. These factors made them deprived from the privileges which all other genders were enjoying. The legal battle against this arbitrary law firstly began in 1991 when Bhedbav Virodhi Andolan (ABVA) expressed that how gay men were maltreated by the society and police. Their standpoint was to end the prejudice happening against the HIV and AIDS patients in the society. Controversy got captured in 1994 when Kiran Bedi rebuffed for providing condoms to prisoners of Tihar jail, claiming that it will persuade homosexuality. ABVA filed a writ petition in Delhi High Court against this and pleaded to proclaim section 377 as unconstitutional but it got disbanded in 2001.

Then in the same year and same Court, Naz foundation (NGO working for gay) filed a PIL for validating homosexual relations. But it got dismissed in 2004 and then review petition was filed which too got rejected. In 2006, Naz foundation filed a SLP to which Supreme Court observed it as a matter of public interest. Supporting hands collaborated with this SLP along with India’s home ministry. In 2009, a division bench of Delhi HC in the landmark case of Naz Foundation v. Government of NCT of Delhi and Others asserted that criminalizing section 377 infringes the fundamental rights like Article 14, 15, 19 and 21 of homosexuals engaging in consensual sex. Further, it was held that irrespective of their orientations, this can’t be regarded as criminal offence.However, Suresh Kumar Koushal, an astrologer, challenged this ruling in SC in the same year. Its decision rolled out in 2013 by a two-judge bench who made judgment against the erstwhile. This resulted in massive wrath among the whole community. After which, Congress MP Shashi Tharoor in 2015 introduced a Private Member’s Bill in the Parliament in support to 2009 Delhi HC order. This bill received majority votes in favor of legalizing homosexuality. Subsequently in 2014, two- judge bench passed the NALSA judgment which finally entitled transgender to register them as ‘third gender’. Along with this, certain economic, political and legal rights were also endowed to them. This initiative conferred them a gender identity and equal status before the law.

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