Section 377 Verdict Pushes Workplaces and Employers for Inclusion & Diversity

New Delhi: As part of its continuing series on HR & Employment Law, Cohere Consultants organized a Masterclass on the Section 377 judgment explaining its impact on diversity and inclusion on the corporate world. The Masterclass was led by Advocate Devika Singh, Cohere’s Lead Legal Consultant and ex-Senior Project Advisor, Gender Rights, Gender-Based Violence & Law Enforcement, NMEW, MoWCD, Government of India.

Section 377 of the Indian Penal Code has been a bone of contention for about a decade now. The provision reflects the archaic mindsets of 1864 Britain which frowned down on all sexual activities against the order of nature. This colonial-era law criminalized even consenting acts between adults on account of morality. Section 377 came to become an instrument of oppression and harassment against any person who strayed from the natural order even more so the LGBT community.   

Movements challenging the section were started in 1991. As it gathered strength, the first public interest litigation filed against the section was in 2001 when the Naz Foundation (India) Trust (a non-governmental organization) challenged Section 377 in the Delhi High Court praying the exclusion of homosexual acts between consenting adults from criminality.

The main reason behind the argument over Section 377 was that it should only be applicable to non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors. However, the case was dismissed by the High Court in 2003 on grounds that the petitioners had no standing in the matter (locus standi). Undettered, the Naz Foundation which was working with a legal team form Lawyer’s Collective then moved the Supreme Court in appeal for a reconsideration of the decision. The Supreme Court found in favour of them and sent the case back to the High Court for a decision on merits. A favorable judgment for decriminalization came in 2009 only to be challenged and overturned by the Supreme Court in 2013 which reinstated the section. When several curative petitions were filed against this controversial decision, the Supreme Court decided to revisit its judgment. This epic battle finally culminated in a historic judgment delivered by the Supreme Court on 6.9.2018 in Navtej Singh Johar v Union of India which finally set right the years of injustice which had been meted out to the LGBT community.

In analysis, the cascade effect of the judgment goes far beyond the Indian Penal Code or “gay” rights. It allows fresh interpretations of gender roles, sex-based discrimination, gender stereotypes, inequality of sexes and even sexual harassment. The decision also impacts the lives of employees, their workplaces and companies, which now need to revaluate their mindsets towards equality and inclusion in society.

The impact of section 377 on workplace policies particularly from an inclusion and diversity standpoint was the main subject of the event which was explained by Devika Singh. Devika is a subject expert on POSH & workplace discrimination and has advised on more than 1100 cases since the 2013 sexual harassment law was enacted, the drafting process of which she had been part of. In recent times, she has seen a rise in the reporting of same-sex harassment and complaints against homophobic behavior. With the 377 judgment undoubtedly, more complaints shall be received as more and more LGBT employees speak up. She focused on all aspects of business and law that revolve around inclusion and diversity and pressed on it being the need of the hour for workplaces that need to respect and attend to concerns cast by race, gender, ethnicity, religion, disability and now sex orientation.

Apart from this, Devika Singh explained in a wonderfully entertaining and simplified manner the impact of the observations of the Supreme Court on, employment and termination, spousal and marriage benefits, medical policies for leave, records and documentation, sex and gender-based stereotypes and even dress codes. She also highlighted significant areas of risk. This topic has become much more pressing with the involvement of new points introduced by swiftly changing law and it requires a clear mindset to make it easy for an individual to understand it.

The masterclass was attended by HR and ER leads, Human resource managers and legal practitioners who appreciated it and described it as an insightful and interactive session. The masterclass on this specific topic will be repeated in Bangalore in the last week of October and in Mumbai in November. As part of the continuing series, future masterclasses are planned in mid-November in Gurgaon and in December in Bangalore on inquiries and conciliations under POSH law.   


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