Of India’s many archaic laws, Section 377 of the Indian Penal Code, which criminalises homosexuality in the garb of criminalising “sex against the order of nature”, is one that should have been scrapped long ago. And yet, the sword continues to hang over the heads of Indians who identify as lesbian, gay, bisexual and transgender (LGBT).
To be sure, the country did come close to junking it when the Delhi High Court held Section 377 “in so far as it criminalises consensual sexual acts of adults in private” as violating Articles 21 (right to life), 14 (right to equality under law), and 15 (right to protection against discrimination) of the Constitution, after the Naz Foundation and others challenged the British-era anathema to personal freedom.
However, the Supreme Court, in 2013, reversed the Delhi HC verdict, and left the ball in the government’s court to repeal the section. That nearly 10 years after the Delhi HC verdict, LGBT individuals still have to live under the regressive law shows how much the government has been willing to act. So, it is just as well that a group of 20 students and alumni of the Indian Institutes of Technology have filed a petition before the Supreme Court for the repeal of Section 377.
The petitioners have asked the SC to strike down Section 377 because it violates “Articles 14, 15, 16, 19 and 21 of the constitution”. This has denied LGBT individuals a life of dignity. If such “second-class citizenship” pushes some of the best minds in the country to the margins—one of the petitioners dropped the idea of becoming a civil servant because of the fear of being treated as a criminal—it isn’t difficult to imagine the quantum of oppression other LGBT Indians, who haven’t had comparable opportunities, are forced to endure.
Opponents of any move to repeal Section 377 often argue it is useful for punishing child sexual abuse (CSA). But that is ill-founded—conflating LGBT sexuality and sexual expression with CSA is deeply flawed. Also, with the Protection of Children from Sexual Offences Act, there is a strong law to punish CSA.
With the legislative failing in its duty towards citizens, the judiciary must ensure that the basic constitutional freedom guaranteed to all citizens is extended to LGBT citizens, too.