Section 377: 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 term which may extend to ten years, and shall also be liable to fine.”
Section 377 has become a subject of diverse interpretation because of lack of accurate and precise definition. Initially it covered only anal sex but later it included oral sex and also covered penile penetration of artificial orifices. The consent and Age of the person was made irrelevant by the law and the above said acts under section 377 was blankly prohibited and criminalised.
Section 377 of the Indian Penal Code which was introduced during the British rule of India, criminalised sexual activities “against the order of nature”. Penetration is considered to be sufficient to constitute the carnal intercourse necessary to the offense described in this section.
AIDS Bhedbhav Virodhi Andolan (ABVA) in 1991 started the movement to repeal section 377. They spelled out various problems with respect to section 377. As the case prolonged for the years, it was revived in the next decade by an Activist group called the Naz Foundation (India) Trust, a Delhi based Non-Governmental Organization that works for prevention of HIV amongst homosexuals. Through the interactions with their clients, they became aware of the effect of section 377 of IPC on homosexuals so it was them who filed a Public Interest Litigation in the year 2001 at Delhi High court for legalising/ decriminalising section 377 i.e. allowing homosexual intercourse between consenting adults.
But in the year 2003, the Delhi High Court contented that the petitioners have no LocusStandi in this matter and refused to consider it which made the Naz Foundation appeal to the Supreme Court who in turn decided that the case should be sent back to the Delhi High Court to reconsider the same based on merits. Consequently there was an intervention by Delhi-based coalition of LGBT, women’s and human rights activists called ‘Voices Against 377’, which demanded to strike down Adult Consensual Sex within the purview of Section 377.
On 7 November 2008, the seven-year-old petition finished hearings. Eventually, a ground breaking judgement was delivered on 2nd July 2009, where the Delhi High Court overturned the 150-year-old section by decriminalising consensual homosexual activities between adults. It was stated by the court that the very essence of the section was against the fundamental rights of the citizen which violates Article 14 of the Indian Constitution. The court also stated that the judgement would hold until Parliament chose to amend the law. However, the judgement does not impair the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors.
Sadly, On 11th December 2013, based on the appeal filed by an astrologer Suresh Kumar Koushal, the Supreme Court reversed the decision passed by Delhi High Court and upheld section 377 as legal.
On 21st December 2013, a review petition was filed by the Central Government saying that ‘the judgement suffers from errors apparent on the face of the record and is also contrary to the well-established principles of law under articles 14, 15 and 21 of the Constitution’. A review petition was also filed by the Naz foundation against the order of the Supreme Court which was later dismissed on 28th January, 2014
At present, the petitioners have filed a curative petition to look at the competence of the earlier judgement passed by the Supreme Court. On 2nd February 2016, the final hearing of the case came in the Supreme Court and it was deemed that the case should be heard by a 5 member Judicial Bench since it deals with and is related to significant questions on the fundamental rights of constitution law. It’s the only ray of hope for those who are in support of this petition to strike down such discriminatory law.
Reversal of Judgement of the high court by the Supreme Court was a fatal blow to equality before law. It goes against the well-established principles of constitution such as personal liberty and equality before law. It is imperative that this decision be revoked as the order passed gravely breaches the freedom of choice of an individual with respect to their sexual orientation, purely on the grounds of them being a minority gender group. The law is expected to ensure that every citizen of the land is treated equally. Those who oppose the scrapping of section 377 argue that it is against the moral values of the society but that can never be considered as a ground to withhold the people from exercising their basic fundamental rights. The hope of LGBT and other communities solely hinges on the decision to be given by the Supreme Court in the Curative Petition. The first country that enacted a law allowing marriage of people of same sex was enacted in the year 2001 in Netherlands which was followed by fourteen other countries such as Argentina, Belgium, Brazil, France, Canada, Ireland, Norway, Iceland, Portugal, Spain etc. Homosexuality as a gender group is increasingly getting social recognition in India as well now. So, I personally feel that India being a democratic country must gouge out the draconian law in Section 377 of Indian Penal Code as it contradicts the very essence of the constitution.
- Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors. . [WP (Civil) No. 4755 of 2001]
- Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust & Ors.[SLP (Civil) No. 15436 of 2009]