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IS SECTION 377 DECRIMINALIZED ONLY IN PAPERS?

AUTHOR :- ARUSHI BANTA STUDENT OF NLC BHARATI VIDYAPEETH, PUNE

 INTRODUCTION

Section 377 of Indian Penal Code was introduced during the British rule in 1861 in India. Section 377 criminalized ‘carnal intercourse against the order of nature with any man, woman or animal’ making it an unnatural and punishable offence. It was based on the Buggery Act of 1553. For many years this Section was criticised as it violated the fundamental rights. A portion of this Section was struck down by the Delhi High court with respect to gay sex in July 2000. But the Supreme Court overturned this judgement in Suresh Kumar Koushal V. Naz Foundation on 11 December 2013. The court held that repealing of Section 377 should be a matter left to the Parliament. But in January 2018, the Supreme Court agreed to hear a petition to re-visit the Suresh Kumar case. On 6 September 2018 the court ruled that Section 377 was unconstitutional and decriminalized it. Though the Section will continue to apply only in cases of bestiality, carnal intercourse with minors and in cases of no consent.

CRITICISM AND SUPPORT

In the year 2008 Additional Solicitor General PP Malhotra openly talked against homosexuality. To quote his exact words he said, “Homosexuality is a social vice and the state has the power to contain it. Decriminalizing it may create a breach of peace. If it is allowed then evils of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society.”

Almost all religious leaders were against homosexuality. To give a few instances Baba Ramdev even stated he could cure homosexuality through yoga and called it a big addiction. The Vishwa Hindu Parishads vice president Om Prakash openly said that homosexuality is against the Hindu culture, nature and against science. Maulana Madni of Jamait Ulema stated that homosexuality is a crime according to scriptures and is unnatural. Rabbi Ezekiel ISSAC, honorary secretary of the Judah Hyam Synagogue stated that in Judaism, our scriptures don’t permit homosexuality.

The Ministry of Health and Family Welfare opposed the upholding of Section 377 stating that it would hinder anti-HIV/AIDS efforts.

The United Nations supported the decriminalising of Section 377 stating that Criminalising private consensual same sex conduct violates the right to privacy. Majority of Indian celebrities also accepted this decision with open arms.

IS SECTION 377 REALLY DECRIMINALIZED

Due to this Section the LGBT community was devoid of any identity in respect to their sexual orientation and it violated their Constitutional rights of equality, privacy and other civil rights. But the question is whether they are actually treated equally in Indian society. The answer is a straight no. LGBT community is still abruptly discriminated against in Indian society. They are seen differently. Even cases of violence are very common against them. Even in some areas, homosexuality is still seen as a mental disorder. There are various instances of denial of giving accommodation, jobs to these people. These people are mocked openly and ultimately these people really never come out in public openly despite decriminalizing Section 377. These people are seen in society as if they have committed a crime. Ultimately, they are forced to become a sociopath.

CONCLUSION

There is an urgent need that Indian society accepts homosexuality with open arms and adopt a modern approach. It should shed all its prejudices and stereotypes regarding homosexuality. LGBT communities are just like normal people and they should not be treated differently.