Section 377: A Violation of Fundamental Rights

July the 2^nd, 2009, a Thursday, may have been a regular day for you or me. But for a community of close to 2.5 Million people, it was a day which would change the state of their existence. This is the day when the Delhi High court made a landmark decision of making India the 115^th country to decriminalize homosexuality.  But the ‘Gay pride’ could not stay for long. About 2 years, 5 months and 9 days later, the country was plunged back into oblivion that reminds us of the dark ages. Homosexuality was criminalized again in a country with close to 1 billion people, roughly 1/7^th of the world.

It would be worthwhile to study how the LGBT rights are protected in the apex body of global organization, the United Nations.  A landmark resolution, A/HRC/RES/17/19 passed on 14^th of July in 2011, close to the time when Delhi High court declared article 377 unconstitutional, commissioned a study that documents discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity in all regions of the world. Furthermore, the resolution called for a panel discussion to debate on the findings of the study. This resolution was formed on the basis of a fundamental law of Universal Declaration of Human Rights that affirms all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth in the Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This resolution was historic in nature as it marked a huge change in the global stand towards homosexuality. While the world is becoming more considerate and progressive towards LGBT rights, the reinstatement of article 377 by our country may be a step in the wrong direction.

India is to a large extent in contradiction to the rights of equality and non discrimination it preaches to the outside world. But it is not new to see a nation put its own internal policy above that of the United Nations.  India is at a juncture which makes it hard to choose between what its laws state and what it holds dear in principle. Articles 14-16 of the constitution embody this fundamental right of equality before law and non discrimination. Articles 17 and 18, collectively, further the philosophy of social equality. Article 15 prohibits discrimination on the basis of caste, creed, religion or sex and Article 19-22 guarantee freedom.

A relic of the Raj, article 377 subdues the right to freedom. It does so by preventing two consenting adults to take a step which both deem fit harmless to each other and society at large. While it is true that some might argue that gay sex can be a cause of AIDS but with 2.08 million cases of HIV in 2011, the LGBT population can’t be blamed for this menace in its entirety.  The article also stands in contradiction to the principles of equality before law defined in article 14-16 by chastising the LGBT community and making it criminal in the eyes of the law. Also, while homosexuality isn’t much of a public evil like marital rape, it still is criminalized as it is considered unnatural. It wouldn’t also be a stretch to imagine that the number of hate crimes towards the LGBT community may increase if the law chooses to not consider them to merit an inclusion into the society in a legal sense.

In this article, we have mentioned the situation of how international laws and our own ideals of freedom and justice are violated by this overturning of a major decision. It is for every citizen of the country to now decide whether just the ‘unnaturalness’ of an act of love is a reason enough to violate the basic rights of man and citizen.

Article written by Vistrit Choudhary, a writer and volunteer with the Zerocrime initiative