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Decriminalisation of Sec. 377 and it’s Impact on the Society (By- SHERLY.J & Renuga. C)

Journal IJLRA
ISSN 2582-6433
Published 2022/06/01
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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 , sherlydoll46@gmail.com ,Saveetha School of Law, Saveetha Institute of Medical and Technical Sciences(SIMATS), Saveetha University, Chennai.
2Renuga. C,BA.LLB(HONS), renugac.ssl@saveetha.com, 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

3 (Meng 2013)
4 (Williamson, n.d.)
5 (Han and O’Mahoney 2018)
6 (“Decriminalization,” n.d.; Longazel, n.d.)
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

7 (“Decriminalization,” n.d.)
8 (Lee 2014)
9 (Gupta and Human Rights Watch (Organization) 2008)
10 (Cousins 2018)
11 (Krishan et al. 2018)
12 (Puri 2016)
13 (Gupta and Human Rights Watch (Organization) 2008; Vanita 2008)
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

14 (Moore 2015)
15 (Burleson 2015)
16 (Lin and Israel 2012)
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.
 
 

17 (Lin and Israel 2012; Kocet and Curry 2011)
18 (Wells 2017)
19 (Couvillon 2008)
20 (Ouer 2015; Martin 2017)
21 (Boehmer and Elk 2015)
22 (Ouer 2015)
1.      Boehmer, Ulrike, and Ronit Elk. 2015. Cancer and the LGBT Community: Unique Perspectives from Risk to Survivorship. Springer.
2.      Burleson, William E. 2015. “Bisexuality: An Invisible Community Among LGBT Elders.” In Handbook of LGBT Elders, 309–21.
3.      Cousins, Sophie. 2018. “Blue Diamond Society: Working with Nepal’s LGBT Community.” The Lancet. HIV 5 (11): e615.
4.      Couvillon, Jan. 2008. “Seniors and Poverty in LGBT Community.” PsycEXTRA Dataset. https://doi.org/10.1037/e549352009-015.
5.      “Decriminalization.” n.d. In SpringerReference.
6.      Gupta, Alok, and Human Rights Watch (Organization). 2008. This Alien Legacy: The Origins of “Sodomy” Laws in British Colonialism.
7.      Han, Enze, and Joseph O’Mahoney. 2018. British Colonialism and the
Criminalization of Homosexuality: Queens, Crime and Empire. Routledge.
8.      Kocet, Michael M., and Jennifer Curry. 2011. “Finding the Spirit Within: Spirituality Issues in the LGBT Community.” Journal of LGBT Issues in Counseling 5 (3-4): 160–62.
9.      Krishan, K., N. Dehal, A. Singh, T. Kanchan, and P. Rishi. 2018. “‘Getting to Zero’ HIV/AIDS Requires Effective Addressing of HIV Issues in LGBT Community.” La Clinica Terapeutica 169 (6): e269–71.
10.  Lee, Joseph G. L. 2014. “Keeping the Community Posted: Lesbian, Gay, Bisexual, and Transgender Blogs and the Tobacco Epidemic.” LGBT Health 1 (2): 113–21.
11.  Lin, Yen-Jui, and Tania Israel. 2012. “DEVELOPMENT AND VALIDATION OF A PSYCHOLOGICAL SENSE OF LGBT COMMUNITY SCALE.” Journal of
Community Psychology 40 (5): 573–87.
12.  Longazel, Jamie. n.d. “Decriminalization.” In Encyclopedia of Social Problems.
13.  Martin, James. 2017. Building a Bridge: How the Catholic Church and the LGBT Community Can Enter into a Relationship of Respect, Compassion, and Sensitivity. HarperCollins.
14.  Meng, Jinmei. 2013. “Conclusion and Recommendations: Decriminalization of Sex Work.” In On the Decriminalization of Sex Work in China, 155–73.
15.  Moore, Mignon R. 2015. “LGBT Populations in Studies of Urban Neighborhoods: Making the Invisible Visible.” City & Community 14 (3): 245–48.
16.  Ouer, Rebekka. 2015. Solution-Focused Brief Therapy with the LGBT Community: Creating Futures through Hope and Resilience. Routledge.
17.  Puri, Jyoti. 2016. Sexual States: Governance and the Struggle over the Antisodomy Law in India. Duke University Press.
18.  Vanita, Ruth. 2008. Same-Sex Love in India. Penguin UK.
19.  Wells, Lance Carlton. 2017. The Truth Comes Out: Laying Waste to the Lies of the LGBT Community.
20.  Williamson, Celia. n.d. “Decriminalization of Sex Work.” In Encyclopedia of Interpersonal Violence.


Article Information

Decriminalisation of Sec. 377 and it’s Impact on the Society (By- SHERLY.J & Renuga. C)

Author Name:  SHERLY.J & Renuga. C
Title: Decriminalisation of Sec. 377 and it’s Impact on the Society
DOI Link::  https://www.doi-ds.org/doilink/06.2022-38115761/SHERLY.J & Renuga. C
Email Id: sherlydoll46@gmail.com
  • Journal IJLRA
  • ISSN 2582-6433
  • Published 2022/06/01
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