The Indian Supreme Court Ruling on Section 377: Part Five

The Indian Supreme Court verdict is seen as “protecting children.”

aadhaar 2jpgWhile the Supreme Court bashing continues, it may make sense to attempt to figure the logic that spurred the petitioners into challenging the Delhi High Court decision to decriminalize the offence.

A reputed Delhi Commission for Protection Child Rights (DCPCR) also joined in the petition against the repeal of Section 377 in the Indian Supreme Court, and fought the section shoulder to shoulder with conservative religious groups.

Only two years before the High Court order was passed in 2009, a national study on child sex abuse conducted by the ministry of women and child development had revealed that 50 percent of the child victims were male. Section 377 was the only protection that male children had against sexual assault.

“In the last 150 years, there have been only 200 cases were this section has been effectively applied. All those cases applied to sodomy and in more than 90 percent of the cases, the victims were minors. So the application of the Section 377 was to protect victims,” offered the-then chairperson of the Commission Abod Kanth.

The High Court in legalizing consensual sex between consenting adults had failed to address the fall-out of the impact of such relationships on children. Children of LGBT parents were more prone to social stigmatization. In decriminalizing homosexuality, the High Court did not devise any protection as far adoption laws were concerned – whether gay and lesbian couples can adopt children, whether they have right to adopt.

The Protection of Children From Sexual Offences Act addresses the issue of sexual assault against children does not address concerns raised by DCPCR relating to adoption, parenting, and stigma to LGBT kids. These issues need to be discussed, deliberated and legislated through process of law. Simply retaining Section 377 or repealing it does not affect gay rights as extensively as widely, and wrongly, understood. It will need a full-fledged legislative endeavor.

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The Apex Court has put the ball in the Parliament’s court and thrown open the option of legislating extensively on the issue and amending the section appropriately; and, in that, provided the perfect platform for change.

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Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal think tank. His areas of expertise include policy, inclusion, foreign affairs, law and diversity. His firm’s website is and he can be reached at gajanan@draftcraft.inRead other articles by Gajanan.

  • Abhinav

    “Simply retaining Section 377 or repealing it does not affect gay rights as extensively as widely, and wrongly, understood. ” I would say it does not affect gay rights to the extent necessary, but it still has a huge impact in terms of prevention of harassment, cultivating a feeling of security among the LGBT community, having faith in one’s own country and also in having the hope of a better future with more deliberation on LGBT rights. And therefore, the effect, as widely understood, is certainly not wrongly understood.