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Section 377 Decriminalized: Here’s Everything You Need to Know

Supreme Court makes a historic move, declares the archaic law ‘unconstitutional’

Riddhi Chakraborty Sep 06, 2018

The Supreme Court's decision legalizes gay sex between consenting adults and comes as much-deserved win for the Indian LGBTQ+ community. Photo: Arijit Sen/Getty Images

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The Supreme Court made the historic decision of decriminalizing Section 377 of the Indian Penal Code earlier today. Their decision legalizes gay sex between consenting adults and comes as much-deserved win for the Indian LGBTQ+ community. Additionally, the bench declared Article 377 as ‘unconstitutional,’ stating that homosexuality is not a mental disorder, but a completely natural state of being.

Initially modeled on Britain’s Buggery Act of 1533, Section 377 refers to ”˜unnatural offences’ and states that whoever has carnal intercourse ‘against the order of nature’ with any man, woman or animal, shall be punished with imprisonment of up to 10 years or fined.

The archaic law has long been used to target and discriminate against India’s LGBTQ+ community and the battle against it first began when NGOs Naaz Foundation and AIDS Bedhbhav Virodh Andolan brought the issue to the Delhi high court in 2001.

Gay sex was briefly decriminalized in 2009 by the New Delhi High Court but the decision was overturned later in 2013. A petition filed in January 2018 by several activists sought to fight the High Court’s decision by bringing it before the Supreme Court.

Chief Justice of India Dipak Misra, justices Rohinton Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra, heard arguments for and against amending Section 377 in July this year before coming to their decision and signing the final verdict at around 12:25 pm today. The decision was also supported by the Supreme Court’s August 2017 ruling on the Right to Privacy as a fundamental right under the Constitution of India, which many saw as the first step towards protecting the rights of Indian LGBTQ+ individuals.

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On the verdict, Malhotra stated, “History owes the members of this community redressal for past persecution and ignorance of the majority. This section infringed on right against discrimination under Article 15, and privacy under Article 21. In view of the findings, in so far as consensual sex between adults is criminalized, the article is struck down.”

Sexual activity with animals, non-consensual sexual activity and other related clauses in Section 377 will however remain criminal.

The Supreme Court also recognized the fact that this is just the first step to making things better for the LGBTQ+ community in India. The general population is highly prejudiced and the ignorance around what it means to be queer is abundant. “Certain sections of our society have been living in shackles of exclusion,” Misra stated. “We have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society. Majoritarian views and popular views cannot dictate constitutional rights. The LGBT community possess human rights like all other sections of society. Equality is essence of constitution. 377 is arbitrary.”

In addition to directing the Union of India to properly broadcast the fact that homosexuality is not a criminal offence and create public awareness to eliminate the stigma, the Supreme Court suggested that the Indian police force should be given be training to better understand the LGBTQ+ community.

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