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Article 377: Debates and distress over Dutee Chand's revelations!
A poor 19-year-old girl Sharmila Malla from far-flung village of Odisha was tied to a tree and brutally thrashed by some members of her own village in the last week. The villagers justified their act of adventurism of beating the teenage girl in a barbaric manner by accusing her of besmirching the village's name by sharing her bed with her lesbian partner.

Within a week after Odia athlete Dutee's declaration about her same-sex relationship Sharmila's issue has come into the limelight and once again the debate on article 377, same-sex and debauchery has started.

This is a typical masculine socio-political conduct often resorted to by the people in dominance. Not only their heinous act was deplorable besides being out rightly illegal but also self-defeating the very cause that they seek to espouse. While the alleged lesbian act was confined to their private perimeter of either their own house or a secluded shed/space, the news of barbarism undertaken by the villagers for so-called cause of protecting the villagers' pride became the reason of besmirching it. This is a spectacular self goal by the so-called guardians of the society, which must be understood first. 

For everything there is a price. Even civilization has its own price. When we live in civil society, we cede some of our volitions, choices and autonomy in favour of the State for it to use the same for the collective benefit of the society under its duty called governance. While governance gives us an orderly society to live there peacefully, often they said governance compromises individual citizen's private and personal rights since there is a thin dividing line between the space covering 'human rights' and the 'governance'.

India acquired the criminalisation of same-sex relationship from the British who had condemned butt-centric sex and oral sex (for the two heteros and gay people) under Section 377 of the Indian Penal Code in 1861. This made it an offense for an individual to intentionally have 'animalistic intercourse against the request of nature'. Following 157 years, the Supreme Court, in September 2018, sanctioned homosexuality by pronouncing Section 377 to be unlawful and proclaiming it to encroach on the essential privileges of self-governance, closeness and character. It articulated the condemning of bodily intercourse as silly, discretionary and clearly unlawful.

One such example, where human rights came in direct conflict with the State interference, is Section 377 of Indian Penal Code, 1860, this British era legislation foisted on the Indian State during British rule. This section deals with punishment for unnatural sex with and involving human. While the said law in the meantime has been done away with by the said  ruler in their own governed territory, India, being a colonial state then, continued to enforce the said law unabatedly even after its independence.

In 2009, the Delhi High Court had decriminalised Section 377, but this order was set aside in 2013 by an SC Bench. In 2018, the SC overturned its earlier 2013 judgment. Homosexuality, it was declared, was a part of human sexuality and consensual sexual acts of adults came to be allowed for the LGBT (lesbian, gay, bisexual, transgender) community. The SC also directed the government to take measures to create public awareness and eliminate the stigma faced by the members of the LGBT community, also referred to as the gay community. However, the Court did not recognise same-sex marriages, despite legal experts urging it to do so.  

Section 377 is a State legislation, which covers religious morality and custom as a measure of governance without factoring human rights covering right to privacy. The moot question is, can a State have any role in citizen's personal right and private space under the garb of governance. If the answer is no, then this Section 377 is undoubtedly against the very tenet of constitutional guarantees under Article 21 of the Constitution of India. Keeping in view this cardinal principle, finally the Hon'ble Supreme Court of India in a five judge Constitution Bench vide its judgment dated 6 September, 2018 rendered in Navtej Singh Johar v Union of India partially held Section 377 ultra vires the Constitution of India.

Accordingly, criminality of same sexual orientation has been done away with. Supreme Court recognized the sexual orientation is an integral part of right to life of every human being, which cannot be encroached upon by the State due to its guarantee under Article 21. To sum up how the Hon'ble Supreme Court of India partially declared Section 377 as ultra vires can be guessed from the following three clear unambiguous legal position of law; Sexual act between two consenting adults are their inviolable right to life, This right is duly guaranteed by the Constitution as fundamental, and any legislation including a part of Section 377 of Indian Penal Code, 1860 has violated the aforesaid right and guarantee.

While this judgment decriminalizes the same sexual orientation and preferences of LGBT community, it is silent on the institution of marriage between and amongst the LGBT community. The Hon'ble Supreme Court of India neither was tasked nor overreached its jurisdiction to decide anything beyond the issue of Section 377 covering criminality of unnatural sex.

Once sexual orientation is recognized as an integral part of human right to life covering right to privacy, it gives the LGBT community to do whatever they want about their sexual orientation within the perimeter of their privacy, which may cover not only a right to live, enjoy and consummate including right to marry a person of their choice without any State interference. While right to live, enjoy and consummate may fall exclusively within the privacy domain, right to marriage may have consequences surpassing the privacy territory with ultimate effect coming in conflict with some existing State legislations.

Having won first round battle getting the right to sexual orientation and preferences declared as an integral part of human rights and right to privacy, the succeeding battles are likely to be fought either politically or in courts to secure the consequential rights such as right to marriage, right to property, right to inheritance, right to entitlement, public eligibility, etc.

Post-decriminalization of human same-sex orientation/relation, one more battle needs to be fought in order to secure complete tranquility for LGBT community. This battle is far bigger, hugely difficult and more complex. In a multi-cultured, multi-lingual and varied religious belief and customs makes our society extremely rigid and complex. No single stroke legislative and regulatory governance to tackle any socio-political-religious-cultural beliefs and practices is practicable or even warranted. Any attempt to tackle this same-sex orientation/relationship through legislative means post-decriminalization era will be an extremely bad idea and the same ought not to be pursued. LGBT problem involving personal choice, being a social problem, can only be tackled though society.

Even the Hon'ble Supreme Court of India did foresee this problem and thus implored the society to correct itself. Society, being the compendium of its constituent i.e. the people, cannot be oblivious to the problems of any of its constituent. It is has evolve, engage and address its own problem constructively, progressively and compassionately keeping in view the aspirations and the expectations of each one of them making them aware that it values each one of them. Though there is a tendency to tilt in favor of the wishes of the majority, this problem ought to be resolved by making them aware that majority interest as against the individual rights can and ought to co-exist for a just society that every constituent looks up to. This is possible by spreading the awareness about the concept of society, civilization, state, human rights, public-private expediency, etc.

While decriminalization of Section 377 is only the first step towards resolving far larger and complex problem faced by the LGBT community, the other critical steps are yet to be resolved for securing full freedom of their individual right to life, choice and privacy. Only the state i.e. police is put at bay through this judgment, but not the mob. Series of violent instances involving members of the LGBT community have come to the mainstream media in the recent past. This is perhaps the opportunity for the society to debate and constructively pursue to bring awareness amongst the members of the society on this issue.

Since Section 377 decriminalized this same-sex act, even these villagers can't justify their action through the State. On the contrary, they have committed an offence of outraging the modesty of a woman under Section 354 of Indian Penal Code, 1860, peeping into someone's private space without authority is an act of criminal trespassing under Section 447 of Indian Penal Code, 1860, committing offence in a group under Section 120B of Indian Penal Code, 1860, causing severe violence and disturbing the tranquility of the society under Section 143 of Indian Penal Code, 1860, rioting under Section 147 of Indian Penal Code, 1860, grievous hurt to bodily injury under Section 325 of Indian Penal Code, 1860, attempt to murder under Section 307, assault or criminal force with intent to dishonor person under Section 355 of Indian Penal Code, 1860, lecherously looking at a woman under Section 354D of Indian Penal Code, 1860, contempt of Supreme Court under Article 129 of Constitution of India, etc.

It has also been reported in the news in recent past that one celebrated athlete; an Olympian from Odisha Miss Dutee Chand openly confessed to her sexual orientation towards her one lesbian partner and showed her desire to marry with her partner. Such a news item has its constructive effect on the society for it helps in bringing these socially stigmatic issues for a discussion amongst the masses as a medium for awareness. While Dutee Chand did not suffer the similar fate of Miss Sharmila Malla for obvious reason, but these instances gives an opportunity to reflect and engage the society in a constructive manner.

The next question is what will happen if Dutee Chand like individuals wish to take their personal choice/orientation to the next level i.e. living, marrying, and engaging with their similar-sex partner?

Staying, marrying and engaging with another individual is a purely personal human right and choices to which state as no control nor it can ever control the same in a civilized world. However, it is to be noted that State regulates pubic activities and public space through legislation and executive instruments/texts. While staying, marrying and engaging with a same-sex partner is not a problem legally, some of the consequences therefrom do come under some peripheral regulatory standards such as pensionary, taxing, passport, property, inheritance, licensing, schooling, compensatory, entitlement, social security schemes, divorce, etc regulations. Section 498A of Indian Penal Code, 1860 protecting wife from marital atrocity, Section 4 of Dowry Prohibition Act, 1961 protecting women from dowry demand, Section 13 of Hindu Marriage Act, 1955 giving grounds of divorce are not gender neutral legislations and thus are available to a particular class of persons, which may come in the way of LGBT community marriages.

It is significant to note that though the same-sex marriage does not require a legislative certificate, legislation for their registration can address the aforesaid problem narrated above. The present Special Marriage Act, 1954 and Hindu Marriage Act, 1955 do not address the problems faced by the gay and lesbian marriages post decriminalization of their sexual orientations which can be addressed either by amendment to these existing legislation or by a special legislation thereto. An amendment to these existing legislations will be an ideal step towards this for a separate legislation exclusively confining to the members of this community can be a counter-productive for having a potential for racial and social discrimination. One senior member, Shri Shashi Tharoor, of Indian National Congress and the then member of the Lok Sabha unsuccessfully moved a private Bill in the year 2015 for validity of same-sex marriage.

This implies regardless of its official and legitimate acknowledgment, homosexuality is as yet polluted with transgression and depravity in the standard open talk.  The mentality of the general public and people that disparage gays needs to change and, for this, a larger number of should be done than lawful and authoritative endeavors.

Till at that point, the gay people and gays need to live like Dutee Chand with, as she put it, 'adverse attention'. The Supreme Court decision has absolutely offered boldness to the LBGT people group to talk about their sexual direction yet the ground-level substances need a change for its legitimate gathering for the 19 year rural innocent girl Sharmila.

The problem faced by the society can only be addressed by the society itself. The members are part of it. It is the collective duty and responsibility of the society to address its problems but it is only those members, who are informed, conscious, empowered and vigilant, who have to shoulder its collective responsibility to address its ills by making the other part of the society aware and informed by constructively and effectively engaging them in the progression of the society.

Editorial NOTE: This article is categorized under Opinion Section. The views expressed in this article are solely those of the author and do not necessarily represent the views of In case you have a opposing view, please click here to share the same in the comments section.
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