Repealing section 377 of the IPC: Equality of People or Violation of Societal Norms

In India, a nation known for forbearance and restraint, homosexuality is illegal and the dominant cultural attitude is hitherto condemnatory. This has resulted into social ostracism and alienation of the homosexual population.

The judgment of the Delhi High Court in Naz Foundation v. Union of India, [WP(C) No.7455/2001] delivered on 02/07/2009, triggered a euphoric response nationwide in which section 377 of the IPC was held to be violative of fundamental rights (Articles 14, 15 and 21). The Court also noted that this clarification of the law would hold until the Parliament chose to effectuate the recommendations of the 172nd Law Commission Report, which had recommended the repeal of section 377.

Decriminalization of homosexuality would spell doom for Indian culture and civilization and would threaten the very fabric of the traditional multicultural diversified integrated Indian society. Section 377 should not be repealed by merely stating that it is obsolete or anachronic. Indian laws need to cater to the established norms of our own society and should not amend/ repeal laws in a bid to ape the West and blindly imitate their legal provisions without adequate foresight.

Repealing section 377 would have a catastrophic impact on our society leading to severe degradation of moral values. The Indian mindset is yet to accept homosexual relations openly. In a recent survey, only 2% of the respondents preferred homosexual marriages for oneself even when illegal whereas 98% strongly rejected any such possibility. Homosexuals comprise only 0.3% of India’s population and the rights of rest 99.7% of the population to lead a decent and moral life in society would be violated if this section is obliterated. The demands of an insignificant minority cannot be granted at the cost of basic rights of an overwhelming majority.

Section 377, which punishes carnal intercourse against the order of nature, is not targeted only at homosexuality, but sodomy, transvestism and other unnatural peccadilloes too, which if repealed would augment such crimes. It will catalyze the already increasing rate of divorces as married homosexuals would prefer to remarry. In India, there is a serious lack of adequate legal provisions regarding the issues of marriage, adoption, maintenance, inheritance, matrimonial alimony etc. for a gay couple opting for marriage. Moreover, the medico-legal aspects of homosexuality are yet to be well-researched. For instance, the Indian Journal of Psychiatry treats homosexuality as a treatable disease.

Hence, taking the present Indian societal milieu and the above factors into consideration, the demand for the repeal of section 377 of the IPC seems to be unreasonable as it would result in a serious conflict in the institutions of marriage, family and law.