1. Section 377
Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1861 during the British rule of India. Modeled on the Buggery Act 1533, it makes sexual activities "against the order of nature" illegal. On 6 September 2018, the Supreme Court Of India ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary", but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality.
S377 Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.
2. Legal Challenges
The discriminatory nature of Section 377 came under scrutiny as societal attitudes towards LGBTQ+ rights evolved globally. The legal battle against Section 377 gained momentum in the 21st century. In 2009, the Delhi High Court delivered a landmark judgment in the Naz Foundation v. Government of NCT of Delhi case, decriminalizing consensual homosexual acts between adults. However, this victory was short-lived as the Supreme Court overturned the decision in 2013, reinstating Section 377.
3. Landmark Supreme Court Judgement
Portions of the section were first struck down as unconstitutional with respect to gay sex by the Delhi High Court in July 2009. That judgement was overturned by the Supreme Court Of India (SC) on 11 December 2013 in Suresh Kumar Koushal vs Naz Foundation. The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Court reviewed curative petitions submitted by the Naz Foundation and others, and decided that they would be reviewed by a five-member constitutional bench.
On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttaswamyjudgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental right and that the rights of the LGBTpopulation are real and founded on constitutional doctrine. This judgement was believed to imply the unconstitutionality of section 377.
In a historic judgment on September 6, 2018, the Supreme Court of India delivered a groundbreaking verdict in Navtej Singh Johar v. Union of India. The court unanimously declared that consensual adult same-sex relationships were no longer a criminal offense under Section 377. The judgment was celebrated as a triumph for LGBTQ+ rights and a step towards recognizing the fundamental rights of individuals, including the right to privacy and dignity.
4. Support
In 2008 Additional Solicitor General PP Malhotra said: "Homosexuality is a social vice and the state has the power to contain it. Decriminalising homosexuality may create a breach of peace. If it is allowed then the evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." This view was shared by the Home Ministry.
11 December 2013 judgement of the Supreme Court, upholding Section 377 was met with support from religious leaders. The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each others religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment" TheDaily News and Analysis article added that Baba Ramdev, India's well-known yoga guru, after praying that journalists not "turn homosexual", stated he could "cure" homosexuality through yoga and called it "a bad addiction".
5. Opposition And Criticism
The Ministry Of Health And Family Welfare opposed the upholding of Section 377, stating that it would hinder anti-HIV/AIDS efforts. According to the NCRB, in 2015, 1,491 people were arrested under Section 377, including 207 minors (14%) and 16 women. Human Rights Watch also argued that the law had been used to harass HIV/AIDS prevention efforts, as well as sex workers, homosexuals, and other groups at risk of the disease, even though those found guilty of extortion in relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of the IPC. The People's Union for Civil Liberties has published two reports on the rights violations faced by sexual minorities and, in particular, transsexualsin India.
In 2006, Section 377 came under criticism from 100 Indian literary figures, most prominently Vikram Seth. The law subsequently drew even more criticism from several ministers, most prominently Anbumani Ramadoss and Oscar Fernandes. In 2008, a judge of the Bombay High Court also called for the scrapping of the law.
The United Nations also said that the ban violated international law. United Nations human right chief Navi Pillay stated that "Criminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified", and that the decision "represents a significant step backwards for India and a blow for human rights.", voicing hope that the Court might exercise its review procedure.
6. Implications For Society
The decriminalization of consensual same-sex relationships had far-reaching implications for Indian society. It marked a significant shift towards inclusivity, recognizing the rights of individuals irrespective of their sexual orientation. The judgment acknowledged that criminalizing private, consensual relationships violated the principles of equality and non-discrimination enshrined in the Indian Constitution.
7. Ongoing Challenges
While the striking down of Section 377 was a major milestone, challenges persist. Societal acceptance, non-discrimination in various spheres of life, and legal recognition of same-sex unions are areas that still require attention. The LGBTQ+ community continues to advocate for equal rights and protection under the law.
8. Conclusion
The evolution of Section 377 reflects the changing societal attitudes towards LGBTQ+ rights in India. The legal journey from criminalization to decriminalization marked a crucial step towards recognizing the inherent dignity and equality of all individuals. While the legal landscape has shifted, the ongoing struggle for complete acceptance and equal rights for the LGBTQ+ community underscores the need for continued activism, awareness, and legal reforms.
Citations
- Section 377 in The Indian Penal Code
- https://www.hindustantimes.com/india-news/section-377-and-the-law-what-courts-have-said-about-homosexuality-over-time/story-66xXSTFILnBYo5hE7yNaKL.html (Last Visited 20th November)
- https://thewire.in/law/supreme-court-scraps-section-377-majoritarian-views-cannot-dictate-rights-says-cji (Last Visited 20th November)
- https://indiankanoon.org/doc/970675/ (Last Visited 20th November)
- https://en.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India (Last Visited 20th November)
- https://en.wikipedia.org/wiki/Suresh_Kumar_Koushal_v._Naz_Foundation (Last Visited 20th November)
