Section 377 of the Indian penal code criminalizes the sexual activities against the order of nature. According to it,
“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.”
This archaic British law dates back to Indian Penal Code 1860, introduced by Lord Macaulay. It criminalises sexual activities against the order of nature. One of the grounds of introduction of the section was to criminalise the acts of homosexuality as it was condemned by many religions. More importantly the section did not make any distinction between the consensual acts and non-consensual acts.
This section violates the basic human rights of LGBT community and leads to harassment and violence against them. This has led to protests demanding the repeal of the section.
Evolution of Section 377
Naz Foundation (India) Trust v. Government of NCT of Delhi (2009)
Naz foundation is a Delhi based NGO that works in the field of HIV prevention among homosexuals. Working in this field the foundation realized that section 377 acted as a biggest impediment for LGBT community in having access to health services because of fear of prosecution under the law.
further makes the homosexual community vulnerable. Therefore in 2001 the foundation filed a writ petition in
the Delhi High Court challenging the constitutionality of section on
grounds of violation right to
privacy and health (A. 21), freedom of expression (A.19) & equality (A.14).
Further they submitted violation of Article 15 which says there will be no discrimination on basis of sex. Even the Ministry of Health and Family Welfare (in conjunction with the National Aids Control Organization) supported the petition of Naz foundation on grounds that existence of section 377 proves counterproductive to prevention of HIV AIDS.
the case was dismissed by the HC saying that the petitioner has no locus standi
in the matter. Naz Foundation appealed to the Supreme Court against the
decision of the High Court to dismiss the petition on technical grounds. The
Supreme Court decided that Naz Foundation had the standing to file a PIL in
this case and sent the case back to the Delhi High Court to reconsider it on
in 2009 the court passed the
landmark judgment upholding Section 377
unconstitutional on grounds of violation of fundamental rights under article
14, 15 and 21 of the constitution.
- First the court stated that section 377 violates article 14 which states that every citizen has equal opportunity of life and is equal before law.
- Second Court said that the word sex under article 15 should not be narrowly interpreted. The word sex apart from biological sex also includes the sexual orientation of the individual, so any discrimination on basis of sexual orientation is not permitted under article 15.
- The Court also noted that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts.
- Above all the by criminalizing consensual
sexual acts between adults in private, Section
377 grossly violates the right to privacy and liberty guaranteed by Article 21
of the Constitution.
up its judgment, the High Court stressed
the importance of upholding the values of equality, tolerance and inclusiveness
in Indian society.
An appeal was filed against this decision in the Supreme Court by several organisaitons (Reigious, political and social) and individuals (including Suresh Koushal), who claimed that the right to privacy did not include right to commit an offence, and that decriminalising homosexuality would affect the institution of marriage.
Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust 2013
In this case the SC overturned the High Court verdict and recriminalized homosexuality. While upholding the constitutional validity of the section, The SC said that it is not violation of article 14 as it made a distinction between persons who “indulge in carnal intercourse in the ordinary course” and persons who “indulge in carnal intercourse against the order of nature.”
Most shockingly, the Court said that the LGBT community constitutes only a “minuscule fraction” of the country’s population. Court maintained that hardly 200 persons have been prosecuted in 150 years of Section 377. Further the court said that the argument that Section 377 is misused by the police to blackmail, harass and a torture homosexual is not a valid ground to hold the section unconstitutional.
Ultimately, the Court held that Section 377 is constitutional, since it does not violate Articles 14, 19 and 21 The Court also held that their ruling is only on the correctness of the Delhi High Court’s decision. It observed that Parliament is free to consider the desirability and propriety of repealing or amending Section 377.
solution, it said, was to clarify the
law with suitable legislative amendments, rather than say the law violated the
right to freedom and equality.
Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. (Right to Privacy case)
In August 2017, the Supreme Court in Justice Puttaswamy case judgment on Right to Privacy ruled that sexual orientation is an important attribute of privacy.
The Supreme Court stated that Right to Privacy and Protection of Sexual Orientation are a fundamental right under Articles 14, 15 and 21 of the Constitution. The SC also said that discrimination on the basis of sexual orientation is offensive to the dignity of an individual. It ultimately paved way for decriminalization of homosexuality.
On 27 April 2016, five people from the
LGBT community (including Navtej Singh
Johar) filed a new writ petition in
the Supreme Court challenging the constitutionality of Section 377 of
the Indian Penal Code. The petitioners claimed that the issues which they
raised in their petition were varied and diverse from those raised in the
pending curative petition in the 2013 Koushal case, in which the Supreme Court
had upheld the constitutionality of Section 377.
Singh Johar v. Union of India
in September 2018 decriminalized section 377 stating that Section 377 is irrational, arbitrary,
manifestly unconstitutional and incomprehensible as it fetters the right to equality for LGBT community.
The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. This included “the choice of whom to partner, the ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation”.The judgement also made note that LGBTs are entitled to an equal citizenship and protection under law, without discrimination.
portions of Section 377 relating to sex with minors, non-consensual sexual
acts, and bestiality remain in force.