SEXUALITY IN CONTEMPORARY INDIA: SECTION 377 OF INDIAN PENAL CODE

Abstract

India is a vast country depicting wide social, cultural and sexual variations. Indian concept of sexuality has evolved over time and has been immensely influenced by the decision of various courts in the country. What needs to be understood is that homosexuality is a person’s sexual preference and not a disease and just because heterosexuality is “common” does not mean it is a norm and homosexuals violate it. We live in the 21st century and it is time to break free from the shackles of orthodoxy and embrace the progressive laws. 

Section 377 of the Indian Penal Code has been a bone of contention in India for several years now. The provision under Section 377 of Indian Penal Code is unconstitutional in so far as Section 377 IPC is violative of Fundamental Rights, namely, right to equality (Article 14 and 15) and right to life and personal liberty (under Article 21). This impugned section targets a group of persons, hence making an unreasonable classification based on sexual preferences which are necessarily of a non-procreative nature. Also, the object and criterion of the statute are not vibrantly clear. Article 15 of the Constitution prohibits discrimination on several enumerated grounds, which includes “sex”. Therefore, it can be construed that prohibition of discrimination on the ground of “sex” includes discrimination on grounds of “sexual orientation which violates the rights of homosexuals under Article 15 because of the impugned section of IPC. Article 21 of the Constitution protects privacy and dignity within the realm of personal liberty of all persons. Section 377 of IPC offends the dignity of homosexuals as a class, makes them second class citizens and denies them full moral citizenship because unfair discrimination provides a bulwark against invasions which impair human dignity.