The Morung Express

Church’s Response to the Indian Supreme Court Judgment on Decriminalizing Section 377 of IPC

Fr. Stephen Fernandes

Secretary, Catholic Bishops’ Conference of India (CBCI) Office for Justice Peace and Development


On Thursday, 6 September 2018 the Indian Supreme court struck down the law which up to now has criminalized consensual gay sex. Section 377 of IPC considered homosexuality, i.e. homosexual behavior or act between consenting adults in private or in public a crime. But now the Supreme Court has decriminalized homosexuality (i.e. homosexual act or homosexual behaviour) between consenting adults. This is a legal judgment. In law, this means that homosexuality in the above sense is no more a crime calling for sanctions or punishment. The latter is removed from the list of crimes that can call for legal prosecution.


However, we must note that homosexual act between an adult and minor and homosexual act between an adult and child would be considered criminal and illegal always in civil law. The latter would not be decriminalized in civil law. Besides, it will be both legally and morally unacceptable.


Here, it is important for us to note the distinction between crime and morality. The critical point for clarification is: That homosexuality is now not a crime in civil law (in the Indian Penal Code) does not mean that homosexual acts or behaviour is morally acceptable or justified. What is legal is not equal to moral acceptability. The Catholic Church (and many others) hold that homosexual behaviour (between consenting adults) is morally unacceptable because it violates the purpose of human sexuality which is procreation and union of love fulfilled in the loving union of man and woman in marriage. This is the moral stand of the Catholic Church. In Catholic moral perspective, homosexual acts or behaviour is morally unacceptable.


We must draw also draw a distinction between homosexuality as an orientation for which one cannot be blamed because of early psychogenetic origin or birth and homosexuality acquired by deliberate choice and practice. While the Church makes it clear that homosexual acts are objectively wrong and morally unacceptable, homosexuality as an orientation is not a sign of perversion but as the expression of a condition, an inversion in a psychological sense. It is considered more a medical condition or pathology consonant with modern studies. Even when the particular inclination to homosexual acts is disordered, the person retains his or her intrinsic human dignity and value.


The Church respects the dignity of homosexuals (be they men or women) as persons and human rights flowing from human dignity and personhood just as the church stands for the same for all without exclusion or discrimination. Homosexuals are integral members of society. The Church condemns any kind of violence and hatred against them. They must be treated with understanding, compassion and sensitivity. According to the moral vision of the Church those who have a homosexual orientation should not suffer unjust discrimination in law or reality. Every sign of unjust discrimination in their regard should be avoided, according to the Catechism of the Catholic Church, no. 2358. Amoris Laetitia No.250 states: “We would like before all else to reaffirm that every person, regardless of sexual orientation, ought to be respected in his or her dignity and treated with consideration, while ‘every sign of unjust discrimination’ is to be carefully avoided, particularly any form of aggression and violence.”


One negative fallout of decriminalization of section 377 of IPC concerning homosexuality is that many would conclude that decriminalization is moral justification and moral acceptability. This is an error. This would call for moral formation in general and moral formation regarding morality of human sexuality. Formation of conscience is essential in this area. It is a challenging task for the church and society.


The Church and all people are concerned about protection and strengthening of the fundamental value of marriage as a union between man woman and family raised by such conjugal union. It is important to uphold the right moral perspectives regarding marriage family and upbringing of children. Marriage is not just any relationship between human beings. Men and women are equal as persons and complementary as male and female. Homosexual acts go against the natural moral law. Homosexual acts close the sexual act to the gift of life. They do not proceed from a genuine affective and sexual complementarity. Homosexual unions are also totally lacking in the conjugal dimension, which represents the human and ordered form of sexuality. Homosexual unions are also totally lacking in the biological and anthropological elements of marriage and family which would be the basis, on the level of reason, for granting them legal recognition. Such unions are not able to contribute in a proper way to the procreation and survival of the human race. Under no circumstances can they be approved. Hence, same sex marriages are not acceptable at all.


Decriminalization of article 377 is likely to lead to campaigns by homosexual groups for the next steps of legalization of same sex unions on a par with marriage and legalization of the rights of the same sex couples to adopt children (orphans). The Congregation for the Doctrine of the Faith in its concluding remarks to its document on Considerations regarding proposals to give legal recognition to unions between homosexual persons aptly stated: “The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity”. However, it is important to note that we must reach out to homosexuals in care and concern including the psychological and sociological aspects, and it is the need of the hour.