Under the supervision of Lord Macaulay, in the year 1860, the Indian Penal Code was penned down and enacted and when India and Pakistan attained their freedom in 1947, the penal code was inherited by both the nations. Today, more than seven decades after the independence and more than 150 years after its enactment, the Indian Penal Code has undergone some transformation in form of several amendments but yet its basic structure remains the same.

An interesting and unchanged part of this code is the Section 377 which defines ‘Unnatural offences.—Who ever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.’

The Section 377 of the Indian Penal Code has been quite a controversial part of the Indian legal system to say the least. This section dates back to the era when the Indian sub continent was being molded in accordance with the ideals of the Victorian morality by its colonial masters. Flash forward to 2018; India is no longer a British colony, Britain which is now the UK no longer rules half of the world, there are new superpowers, there’s internet, humans are flying; another era, completely different world and yet this single line of IPC defining the ‘unnatural offences’ stays. Well, if go by what Victorians considered unnatural back then and what world we live in today, then almost every modern innovation can be deemed unnatural by the Victorians. Even the ‘unnatural’ equipment, you’re reading this article on and that most ‘unnatural’ network we call the internet.

The question is who decides what is natural and what is not? The social morality is transient and keeping changing with changing times and the laws reflect the morals of times they were written down at. The ancient Indian society, surprisingly was quite excepting of the community of people we today refer to as the LGBTQ. If you go through some of the mythological stories, you’d find references of Shiva and Vishnu having a child together. Similarly, amongst humans, there’s a story of widowed queens of Kaikey who were blessed to have a child if they co habited together after the death of their husband. The images at Khajuraho and many other places of era portray images of such ‘unnatural’ couples. One would also come across the notion of gender fluidity through stories of ancient Indian mythology where the heros easily turn into heroines and vice a versa. A few prominent examples would be Shikhandini, Vishnu as Mohini and Arjun as Brihanhalla. Even during the time of the Mughals, the harems had powerful Khwajaseras who guarded and maintained the harems. Well, if the Indians were once so accepting such people then, how and when they became so ‘unnatural’ that their very existence was punishable by law. The Victorian morality has some answers to give about this. India’s moral compass seems to struck in times of their colonial masters. Ironically enough, the actual inheritors of the Victorian morality have left it and moved ahead with times.

So isn’t it high time that we Indians wake up to the truth around us. The people who refer to themselves as LGBTQ are like us and they have always been there, living naturally. Although the world has seemed to deny their existence as some sort of abnormality but the fact remains that pretending to not see the truth doesn’t change the truth. We might have declared the rest of populace as the ‘normal’ ones and them as the ones who are different or ‘unnatural’ but isn’t it like someone awarding themselves? From the other side of the fence, it might be us who are ‘unnatural’.

Back in 2001, a New Delhi based NGO Naj Foundation vs UOI filed a petition again this draconian law. After years of struggle and wait, in 2009, the Delhi High Court declared the section illegal and decriminalized the relations between two consenting adults of the same gender.  Alas, this judgment was challenged by several religious and political groups and in 2013, the Supreme Court overturned it and upheld the constitutionality of section 377.

The decision caused a furor but the Indian public opinion was divided and a large group agreed with the Supreme Court. Public morality was one of reasons cited behind this judgment. Well which morality are we talking about? Still struck with the Victorian straitjacket, are we?

Ironically enough, the 172nd law commission report had recommended the deletion of this very article, way back in 2000 to the then law minister Mr. Ram Jethmalani. The government, in all probability, believed that this decision would go against the popular public morality and didn’t take any action on it.

In the year 2017, we had the landmark judgment for the fundamental right to privacy in the Justice K.S. Puttaswamy v. Union of India, which said “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. This statement raised hopes in the disheartened LGBTQ community. Justice Chandrachud inspired his judgment from the infamous Hadiya case where the Supreme Court ultimately overruled the decision of the Kerala High Court. The reasoning is quite basic; nobody, not even the parents of an adult who is in his or her senses can interfere with his or choice of a partner which made with free will.

So, when on a five judge constitutional bench headed by the CJI Deepak Mishra himself  started hearing on the petitions filed against the 2013 on July 10, 2018, hopes soared high.

Even this time, the central government stated that it has no stand on this issue and places total faith in the wisdom of the judiciary. Although the Attorney general of India, Mr Mukul Rohatagi, was quick to note that even though the government had no stand on the matter sub judice; the government didn’t appeal again the 2010 Delhi HC decision which favored the LGBTQ community whereas it filed a review petition against the 2013 SC judgment which had upheld the constitutionality of the section.

As of now the matter remains sub judice and a final decision is expected by the court by October 2018. We can dare to hope that in the last five years, India has become a little more accepting and mature or at least, the judiciary is now brave enough to uphold the constitutional morality and steer the public morality in right direction.

 BY Paridhi Sinha