Decriminalisation of Sec. 377 and it’s Impact on the Society (By- SHERLY.J & Renuga. C)
Decriminalisation of Sec. 377 and it’s Impact on the
Society
Authored by- SHERLY.J
II-Year BA.LLB
Saveetha School of Law
Saveetha Institute of
Medical and Technical Science(SIMATS)
Saveetha University
Co-Authored by :
Renuga. C
Assistant Professor
Saveetha School of Law
Saveetha Institute of
Medical and Technical Science(SIMATS)
Saveetha University
Abstract
This research
deals with the Decriminalisation of Sec.
377 and it’s Impact on the Society. Decriminalisation means an act which was considered as a crime or an offence previously and later it is not considered as a crime or an offence.
Decriminalisation describes the state of reducing
or lessening the punishments and penalties of a crime. The sec 377 under IPC
have been defined as the canal inter
course with any man, women or animal voluntarily shall be punished with imprisonment for life or may
extend up to ten years and shall also be liable to fine. The section 377 (Unnatural offences) has been
decriminalised on September 06 2018 by a five-judge Constitution bench headed by
Chief Justice Dipak Misra termed the part of
Section 377 of the Indian Penal Code which crimiminalises unnatural sex as irrational, indefensible and manifestly arbitrary. It also said it is
violative of right to equality. This law was decriminalised only the inter course between
men and women. But it does not decriminalise
the inter course with animals and children. The present study is an empirical study done by survey method. The simple
random sampling method was used for the purpose of the research. There were totally 1502 respondents who were
took as the samples. The independent variables
are took here was age and gender.
The dependent variables
are decriminalisation of sec
377 having a positive impact in the society and decriminalisation of homosexuality. The alternative hypothesis is proved i.e Decriminalisation of Sec 377 do have a positive
impact and decriminalisation is a boon for our society regarding
the homosexuality and sexual
orientation.
Keywords:
Decriminalisation, Sec 377,
Homosexual, Sexual orientations , LGBT community, Un natural offenses
1 Sherly
. J,BA.LLB(HONS), 2ND Year , [email protected] ,Saveetha School of Law,
Saveetha Institute
of Medical and Technical Sciences(SIMATS), Saveetha University, Chennai.
2Renuga. C,BA.LLB(HONS), [email protected], Saveetha School of Law, Saveetha
Institute of Medical
and Technical Sciences(SIMATS), Saveetha University, Chennai.
Introduction:
This research deals with the Decriminalisation
of Sec. 377 and it’s Impact on the Society. Decriminalisation means an act which was considered as a crime
or an offence previously and later it is not considered as a crime
or an offence. Decriminalisation describes the state of reducing or lessening the punishments and penalties of a
crime. The sec 377 under IPC have been
defined as the canal inter course with any man, women or animal voluntarily
shall be punished with imprisonment
for life or may extend up to ten years and shall also be liable to fine. The section 377 (Unnatural offences)
has been decriminalised on September 06 2018 by a five-judge
Constitution bench headed by Chief Justice Dipak Misra termed the part of Section
377 of the Indian Penal Code which crimiminalises unnatural
sex as irrational, indefensible and manifestly arbitrary.
It also said it is violative of right to equality. This law was decriminalised only the inter course between
men and women. But it does not decriminalise
the inter course with animals and children.
The Section 377 of the Indian Penal Code (IPC) is an act that
criminalises homosexuality and was introduced in the year 1861 during the
British rule of India. It was referred to the
'unnatural offences'3 and says whoever voluntarily has carnal
intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for life.
The issue regarding the Section 377
was first raised initially by an NGO, Naaz Foundation, and AIDS Bedhbhav Virodh Andolan, in the Delhi
high court in 2001. Both the petitions were dismissed
in the court initially4. Sec 377 was presented by Lord Macaulay in 1860 as a piece of the Indian Penal Code5.
The absence of an assent based qualification in the offense has made gay sex synonymous to assault and compared homosexuality with sexual perversity.However, in a historic verdict,
the Supreme Court of India on September 6, 2018, decriminalised the Section 377 of the IPC and allowed gay sex
among consenting adults in private.
The Supreme Court ruled that consensual adult gay sex is not a crime saying
sexual orientation is natural and
people have no control over it. It has been stated that Right to privacy has now been Recognised to be the
Intrinsic part of the right to life and personal liberty under article
21 of the Indian Constitution6. Sexual
orientation is an Essential attribute
of the identity of LGBT persons7. Sexual
orientation is about who you’re attracted to and want to have relationships with. Sexual orientations include
gay, lesbian, straight, bisexual, and
asexual. Sexual orientation of the person is an extension attribute of privacy
its protection lies at the core of
fundamental rights can Guaranteed by articles 14, 15, and 218. The
right to privacy is broad-based and pervasive under our constitutional scheme and encompasses decisional autonomy to cover intimate /personal decisions and
preserves the sanctity of the private
sphere of an individual9. The Right to Privacy is not simply the ‘
right to be left alone’ and have to
travel far beyond that initial concept. It
now incorporates the ideas of spatial privacy
and decisional privacy and privacy of choices10, it extends to the right to make a fundamental personal choices including
those relating to intimate
sexual contact without unwarranted
state interference. Initially Section 377 affected the private sphere of the
lives of LGBT persons. It takes
away the decisional autonomy of the LGBT persons to make choices consistent with a sexual orientation which would further
a dignified existence
and a meaningful life as a full person section 377 prohibits LGBT11
persons from expressing their sexual
orientation and engaging in sexual contact in private decision which inheres in
the most intimate spaces of one’s
existence12.
The aim of the study is to understand the term
Decriminalisation, to know more about sec 377
in a deeper way, to analyse it's impact on the Society, and to enrich real side
of the Decriminalisation of the 37713.
METHODOLOGY
The study deals with empirical research non-doctrinal study. It deals
with both primary as well as
secondary source of data and various secondary sources like books, articles,
research papers etc. were used as
reference. The study deals with survey method and the main tool for calculating or analysing the results in
pearson chi-square table and the crosstabulation count. The method of collecting is through direct
survey method by getting people’s
opinion and
answers to the questionnaires. Sampling Method:
Random sampling method
was used for the purpose
of this study.
Sample Size:
There are a total of 1502 samples
collected with regard
to this study.
Independent variable:
Age, Gender.
Dependent
Variable:
Decriminalisation of the sec 377 and homosexuality creates
a positive impact
over the society.
Frequency Table
Analysis and Discussion
A survey was conducted
with 1502 people
regarding the Decriminalisation of Sec 377 and its impact over the
society. The collected results are depicted below,
Table-1
AGE
|
|
Frequency
|
Percent
|
Valid Percent
|
Cumulative
Percent
|
|
60 and Above
|
140
|
9.3
|
9.3
|
9.3
|
|
46-60 Years
|
213
|
14.2
|
14.2
|
23.5
|
|
Valid 36-45 Years
|
217
|
14.4
|
14.4
|
37.9
|
|
26-35 Years
|
351
|
23.4
|
23.4
|
61.3
|
|
18-25 Years
|
581
|
38.7
|
38.7
|
100.0
|
|
Total
|
1502
|
100.0
|
100.0
|
|
Out of 1502 respondents, 38.7% of them were into age group of 18-25
years, 23.4% of them were in the age
group of 26-35 years, 14.4% of them were in the age group of 36-45 years, 14.2% of them were in the age group of
46-60 years, 9.3% of them were above 60.
Table 2
Gender
|
|
Frequency
|
Percent
|
Valid Percent
|
Cumulative
Percent
|
|
Female
|
556
|
37.0
|
37.0
|
37.0
|
|
Valid Male
|
946
|
63.0
|
63.0
|
100.0
|
|
Total
|
1502
|
100.0
|
100.0
|
|
In this survey, out of 1502 respondents, 63% of them were Male and the rest 37% of them were
Female.
Hypothesis:
Null Hypothesis
(H0)-- Decriminalisation of Sec 377 does not have a positive impact
and decriminalisation is a
ban for our society regarding the homosexuality and sexual orientation.
Alternative
Hypothesis
(H1)-- Decriminalisation of Sec 377 do have a positive
impact and decriminalisation is a boon for our society regarding the
homosexuality and sexual orientation.
Table 3
Age*Decriminalisation of sec 377 having a positive impact
in the society.
Crosstab
|
|
Decriminalisation
of sec 377 having a positive impact
in the
society .
|
Total
|
|||||
|
Strongly
Disagree
|
Disagree
|
Neutral
|
Agree
|
Strongly
Agree
|
|||
|
|
Count
60 and
% within
Above
AGE
Count
46-60 Years
% within
AGE
|
28
|
37
|
24
|
49
|
2
|
140
|
|
|
20.0%
|
26.4%
|
17.1%
|
35.0%
|
1.4%
|
100.0%
|
|
|
AGE
|
17
|
90
|
53
|
33
|
20
|
213
|
|
|
|
8.0%
|
42.3%
|
24.9%
|
15.5%
|
9.4%
|
100.0%
|
|
|
|
Count
36-45 Years
% within
AGE
Count
26-35 Years
% within
AGE
Count
18-25 Years
% within
AGE
Count
% within AGE
|
40
|
13
|
112
|
42
|
10
|
217
|
|
|
18.4%
|
6.0%
|
51.6%
|
19.4%
|
4.6%
|
100.0%
|
|
|
|
3
|
43
|
155
|
64
|
86
|
351
|
|
|
|
0.9%
|
12.3%
|
44.2%
|
18.2%
|
24.5%
|
100.0%
|
|
|
|
78
|
61
|
250
|
117
|
75
|
581
|
|
|
|
13.4%
|
10.5%
|
43.0%
|
20.1%
|
12.9%
|
100.0%
|
|
|
|
166
|
244
|
594
|
305
|
193
|
1502
|
|
|
Total
|
11.1%
|
16.2%
|
39.5%
|
20.3%
|
12.8%
|
100.0%
|
Chi-Square Tests
|
|
Value
|
df
|
Asymp. Sig.
(2-sided)
|
|
Pearson Chi-Square
|
309.500a
|
16
|
.000
|
|
Likelihood Ratio
|
315.069
|
16
|
.000
|
|
N of Valid
Cases
|
1502
|
|
|
a. 0 cells (0.0%) have expected count
less than 5. The minimum expected count is 15.47.
Null Hypothesis (H0): There is no significant association between age and opinion on the Decriminalisation of the
sec 377. It have a negative impact over the society.
Alternative Hypothesis (H1): There is significant association between age and opinion on the Decriminalisation of the sec
377. It do have a positive impact over the
society.
From the above table, the
respondents from the age group of 18-25 years,
13.4% of them,ie., 78 strongly disagreed;
10.5% of them,ie.,
61 members disagreed;
43.0 % of them,ie., 250 were neutral;
20.1% of them,ie., 117 members agreed and the rest members
strongly agreed with the statement that the Decriminalisation of sec 377
having a positive impact in the
society .
From the respondents from the age group of 26-35 years, 0.9% of
them,ie., 3 strongly disagreed; 12.3
% of them,ie., 43 members disagreed; 44.2 % of them,ie., 155 were neutral; 18.2% of them,ie.,
64 members agreed and the rest members
strongly agreed with the statement.
From the respondents from the age group of 36-45 years,
18.4 % of them,ie., 40 strongly disagreed;
6.0 % of them,ie., 13 members disagreed; 51.6
% of them,ie., 112 were neutral; 19.4%
of them,ie., 42 members agreed and the rest members strongly agreed with the
same.
From the respondents from the
age group of 46-60 years, 8.0% of them,ie., 17 strongly disagreed; 42.3% of them,ie., 90 members disagreed; 24.9% of them,ie.,
53 were neutral;
15.5 % of them,ie., 33 members agreed and the rest members strongly agreed with the statement
that the Decriminalisation of sec
377 having a positive impact in the
society.
From the rest, above 60, 20% of them,ie., 28 strongly disagreed; 26.4% of them,ie., 37
members disagreed, 17.1% of them,ie., 24 were neutral; 35.0%
of them,ie., 49 members agreed and
the rest members strongly agreed with the same.
In the above table, the variable Age is taken as the independent variable
and the statement that as the dependent variable. Here through
this analysis, the chi square Pearson value result is 0.000. According
to chi square test, the ratio obtained
is below 0.05. Therefore the alternative hypothesis is proved from the above analysis.
Hence, the alternative hypothesis that there is significant
association between age and Decriminalisation of sec 377 having a positive
impact in the society.
Table 4
AGE * Decriminalisation of homosexuality Crosstab
|
|
Decriminalisation of
homosexuality
|
Total
|
|
|
Ban
|
Boon
|
||
|
|
60 and Above
|
Count
% within AGE
|
99
|
41
|
140
|
|
70.7%
|
29.3%
|
100.0%
|
|||
|
|
46-60 Years
|
Count
% within AGE
|
64
|
149
|
213
|
|
30.0%
|
70.0%
|
100.0%
|
|||
|
AGE
|
36-45 Years
|
Count
% within AGE
|
128
|
89
|
217
|
|
59.0%
|
41.0%
|
100.0%
|
|||
|
|
26-35 Years
|
Count
% within AGE
|
135
|
216
|
351
|
|
38.5%
|
61.5%
|
100.0%
|
|||
|
|
18-25 Years
|
Count
% within AGE
|
205
|
376
|
581
|
|
35.3%
|
64.7%
|
100.0%
|
|||
|
Total
|
|
Count
% within AGE
|
631
|
871
|
1502
|
|
42.0%
|
58.0%
|
100.0%
|
Chi-Square Tests
|
|
Value
|
df
|
Asymp. Sig.
(2-sided)
|
|
Pearson Chi-Square
|
98.136a
|
4
|
.000
|
|
Likelihood Ratio
|
98.129
|
4
|
.000
|
|
N of Valid
Cases
|
1502
|
|
|
a. 0 cells (0.0%) have expected count
less than 5. The minimum expected count is 58.81.
Null Hypothesis (H0): There is no significant association between age and opinion on the boon of the decriminalisation of homosexuality.
Alternative Hypothesis (H1): There is significant association between age and opinion on boon of the decriminalisation of homosexuality.
DISCUSSION :
From the above table, the respondents from the age group
of 18-25 years, 35.3% of them,ie.,
205 voted for Ban of the decriminalisation of homosexuality; 64.7%
of them,ie., 376
members voted for Boon of the decriminalisation of homosexuality; From
the respondents from the age group of
26-35 years, 38.5% of them,ie., 135 voted for Ban; 61.5% of them,ie., 216 members voted for Boon; From the
respondents from the age group of 36-45 years,
59.0% of them,ie., 128voted for Ban; 41.0% of them,ie., 89 members voted
for Boon; From the respondents from the age group of 46-60 years, 30.0% of them,ie., 64 voted for Ban;70.0%
of them,ie., 149 members voted for Boon; From the respondents above the age group of 60 years, 70.7% of them,ie., 99
voted for Ban;29.3% of them,ie., 41 members voted for Boon of the decriminalisation of homosexuality.
In the above table, the variable Age is taken as the independent variable
and the statement that
decriminalisation of homosexuality as a boon is the the dependent variable.
Here through this analysis, the chi
square Pearson value result is 0.000. According to chi square test, the ratio obtained is below 0.05. Therefore the alternate
hypothesis is proved.
Hence, the alternative hypothesis is that there is
significant association between age and opinion on boon of the decriminalisation
of homosexuality.
Recommendation
Gender rights activists have argued that Section 377 violates different
articles of the Indian Constitution -
Article 14 guaranteeing equality before law to all individuals14;
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.
The petitioners, had argued
that Section 37715, in so far as it criminalizes homosexuality, violates Article
14 (equality before law), Article 15 (prohibition of
discrimination on grounds of religion,
race, caste, sex or place of birth), Article 19 (freedom of speech and
expression, and to form associations
or unions) and Article 21 (right to Life) of the Constitution of India. The court highlighted that LGBT16
community possesses same human and fundamental rights as other citizens. Since it has been judged before law and when it
prevails in our society, it has been
made into analysis that the decriminalisation
of this sec 377 had prevailed a positive impact
in our society. But minority of the people doesn't accept with the fact that
this has a positive impact in our society. It is recommended that the minority of the people
should also
analyse the true fact and rely on the fact. Those
people should be property educated by various
NGO’s and institutions and organisations about these communities. This would be
a better solution for these varied
thoughts.
Conclusion
“The Constitution of India begins by saying We, the people of India and not we the heterosexual people of India. We cannot
look at the state as a parent. We have to demand our rights," said Kaushik Gupta, a lawyer activists17.
The vast thing of this sec 377 has been narrow that Sexual orientation is a biological phenomenon, any discrimination on this grounds
is violative of fundamental rights.
The SC in 2014 directed the
government to declare transgender a
'third gender' and include them in the OBC quota. In August 2017, the SC had upheld the Right to Privacy as a
fundamental right under the Constitution18. It also observed
that “sexual orientation is an
essential attribute of privacy”. Beyond decriminalising
19 homosexuality20, we need to think about how homosexuals and persons who identify
themselves as being outside the conventional binary, can be integrated
into society without using their
gender or sexuality as the foci of such integration21. So, for
example, we need to start thinking of
how social institutions like marriage or parenting can be re-imagined; we need to redesign
pedagogical tools to embrace these differences; we need to redevelop institutions like schools and workplaces
to make them all inclusive22.The present study is an empirical study done by survey method. The
simple random sampling method was used for the purpose
of the research. There were
totally 1502 respondents who were took as the
samples. The independent variables are took here was age and gender. The dependent variables
are decriminalisation of sec 377 having a positive impact in the society and decriminalisation of homosexuality. The alternative hypothesis is proved i.e Decriminalisation
of Sec 377 do have a positive impact
and decriminalisation is a boon for our
society regarding the homosexuality and sexual orientation.
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