SECTION 377

TOPIC – SECTION 37

**AUTHOR  – HAJRA BEGUM,  A STUDENT OF SULTAN UL ULOOM COLLEGE OF LAW, HYDERABAD

SECTION 377

In India, the concept of homosexuality has been successfully kept under cover for many years. Living in the 21st century, people in the LGBTQ community are still fighting for their basic rights of equality and acceptance. There is a major issue as the discrimination against the LGBTQ community is highly prevalent in the Indian society where people still consider “gay-sex” a taboo. Even though homosexuality and queer identities have been accepted by the present Indian youth, but within the boundaries of families and homes, acceptance remains a constant struggle for the people of the community.

Section 377 of the Indian Penal Code states “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”.

• This was a colonial-era law that was at odds with modern notions of justice and equality of all humankind. Section 377 criminalised the act of private consensual homosexual sex between adults as well.

• Even some heterosexual acts considered “against the order of nature” are offences under this Section.

• The Supreme Court judgement in 2018 ruled that this Section’s use against consenting adult homosexuality was irrational, arbitrary and not justified.

• After the ruling, Section 377 is applicable only to non-consensual sexual acts, sex with minors and bestiality. These are still criminal offences.

ARGUMENTS AGAINST REPEALING SEC 377

There are certain groups who were against the repealing of this Section. Many religious groups and denominations were against this contending that homosexuality was against God and religious mores. There was also another criticism of repealing the Section, that legalising homosexuality would spread diseases such as AIDS, and cause a health hazard in the country.

On 12th June, 2020 the Uttarakhand High Court acknowledged that while the concept of same-sex is not legally recognised, couples who are cohabiting in a live-in relationship are granted protection by the law. On January 2020, a petition was filed in Kerala by a gay couple who got married in July 2018 and were living together since then. Due to the lack of recognition of their legal rights as compared to other couples, they felt discriminated against. They also mentioned that there was a lack of acceptance in society.SSS

The Bharatiya Nyaya Sanhita (BNS) 2023, the proposed replacement for the Indian Penal Code (IPC), does not contain IPC Section 377 (or an equivalent section), which was read down by the Supreme Court in 2018. While Section 377 (“unnatural offences”) remained in the IPC, it can no longer be used to criminalise gay sex between consenting adults. But the absence of this section in the BNS can leave adult male victims of sexual assault without much recourse in the law, some experts have pointed out.

How is this position changed by the proposed BNS?

It has been pointed out that if the Bill is passed in its present form, groups including male victims of sexual assault, could lose the legal protection accorded to them.

This, it is argued, is because the offence of “rape”, as defined in the proposed BNS, is gendered — which means that it is committed by a man against a woman. While this is the position in the IPC as well, in the IPC, Section 377 — which mentioned “carnal inter­course against the order of nature with any man, woman or animal” — did offer protection to non-minor males from rape. Now, in the proposed BNS, this section is gone.