By Nandini Nalam
On the 6th of September, the Supreme Court of India decriminalised Section 377 of the Indian Penal Code, which states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” In layman’s terms, this decriminalises homosexual intercourse and bestiality; contrary to misinformed belief – the latter still remains a highly punishable, and decidedly an unethical offense. Furthermore, the legal age of consent in India is 18 years, and hence, intercourse with, or between minors is not protected by the amendment.
This ruling was justified by the top court because 377 was found in evident violation of the fundamental human rights guaranteed by the Constitution: Article 14 guaranteeing equality before law to all individuals; Article 15 ensuring that no person is discriminated against on the basis of caste, gender, creed etc.; and Article 21 ensuring the right of life and liberty to all the citizens of the country.
Questionably, this judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality. Nonetheless, criticised by many as a mere “westernisation of
India,” it is important to establish that the section only first came into force in 1861 during the British rule of India, modelled after the Buggery Act of 1533.
Furthermore, as a clarification, while this judgement is certainly transformative to the legislature in the nation, the kind of acceptance and equality wanted by billions of advocates for LGBTQ+ rights is still
far off. Same-sex couples still cannot legally marry or obtain civil partnerships in India.
Moreover, beyond amending laws, it is also important to push for a progressive societal mindset and a shift in cultural norms – provided of course, that is the direction we want to take our country in.
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