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Section 377 in the light of majority opinion & constitutional morality

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By Areeba Saghir,

The greatest misconception regarding Section 377 of IPC (Indian Penal Code) seems to be criminalisation of LGBTQ community (Lesbian, Gay, Bisexual, Transgender and Queer). The general perception is the members of the community are discriminated, their rights are not recognized and hence they press the demand of reading down the concerned section of IPC. Another myth is Section 377 is all about homosexuals. However, after conducting a study regarding the entire issue, I unveiled my ignorance and discovered a lot many things. The controversy revolving around the section is a farce and completely misunderstood.

At present, across the country, a lot many activists and celebrities have raised their voices for the support of the community. There have been parades and marches to advocate the cause. The movement is gaining momentum and has manifested itself into a considerable issue. In the recent hearing in Supreme Court, advocate Menaka Guruswamy made an emotive submission, “My Lords, this is love that must be constitutionally recognised”. Several literary figures including Vikram Seth and Shashi Tharoor have condemned the law calling it ‘draconian’. Human Rights Watch, United Nations and other such organisations have appealed to the Indian Government to repeal such a law in the backdrop of increasing number of diseases especially sexually-transmitted diseases (STDs) and HIV/AIDS which remain untreated due to the social stigma attached with their identity.

After the landmark judgement of Supreme Court in the Puttaswamy Vs Union of India & Others Case, 2017 the scope of Article 21 of the Constitution that is ‘Right to Life and Personal Liberty’ was expanded to include Right to Privacy as a fundamental right. Justice Chandrachud held that the rationale behind the Suresh Koushal Vs Naz Foundation, 2013 judgement was baseless. People from LGBTQ community enthralled as they expected Right to Sexual Orientation would now be actualised under Article 21 as a fundamental right. Thereby, it would lead to scrapping of Section 377 of IPC.
However, the Supreme Court has reserved its judgment on the subject and has promised annulment of the law if it is found to violate fundamental rights in any way. What I inferred is following:


1. Section 377 criminalises unnatural sexual activities and hence, it covers both homosexuals and heterosexuals.

2. Justice Indu Malhotra calls homosexuality as a ‘variation’ and not an ‘aberration’. It undoubtedly implies that homosexuals are recognised under the Indian law.

3. Justice Chandrachud did not agree with the view of the counsel that homosexuality was one the reasons for the spread of HIV. He noted suppression and not recognition of sexual orientation has contributed to the escalating number of HIV cases. It suggests that the community is no more thought to be a health hazard.

4. Landmark judgement of Supreme Court in the National Legal Services Authority Vs Union of India, 2014 Case declared transgender people to be a ‘third gender’ and affirmed that the fundamental rights granted under the Indian Constitution will be applicable to them. Thus, it is comprehensible that Article 14 (Equality before law), Article 15 (Prohibition of discrimination on the grounds only of religion, race, caste, sex or place of birth), Article 16 (Equality of opportunity in matters of public employment) and Article 19 (Protection of certain rights regarding freedom of speech, etc.) will be relevant to them. Hence, LGBTQ community is not at all discriminated.

5. Additional Solicitor General PP Malhotra, in 2008, said: “Homosexuality is a social vice and the state has the power to contain it.” Such homophobic attitude can be justified on the pretext of upholding moral values of the society.

6. The Apex court rejected a demand for a referendum over the constitutional validity of Section 377 of the IPC. It may be inferred that constitutional morality holds supreme place.

Hence, the entire episode entails that homosexuals as individuals are recognized in the ambit of the Indian law and have been given every pedestal to raise their demands akin to what has been provided to every other citizen of the country. Their orientation and identity does not become a hindrance in exercising their rights. However, unnatural intercourse is prohibited in all forms including same-sex marriage.

If the section is revoked, it would open a Pandora’s Box and its ramifications would be nearly impossible to deal with and would pose a serious conundrum. A cascading effect would occur on personal laws, adoption, inheritance, blood donation, etc. Moreover, it could also lead to the demand of giving a legal sanction to incestuous relationships. Notable is the observation of the Chief Justice of India, Justice Dipak Misra where he foresees ‘anarchy’ if the section goes away entirely. Albeit, the 5-judge bench led by CJI Dipak Misra has given a firm assurance to the entire community of clobbering down the law the moment it seems to violate the fundamental rights.

Apart from all the arguments, it should be taken into account that India is a spiritual land. The very foundations of the country are intertwined with religion and culture. It is more or less our moral obligation to protect and preserve it. Anybody’s enjoyment cannot offend the dignity of others. It is the bounden duty of each and every citizen to carve out a just, decent, ethical and moral environment for its children.

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