Committing unnatural sex had been a crime punishable by up to life in jail under Section 377.
In 1860, British colonial rulers introduced the IPC to India. The code was a collection of existing British laws regulating criminal punishment at the time. The IPC’s Section 377 was influenced by a 16th-century statute known as the Buggery Act. The Buggery Act of 1533 was the first statute in England to transfer the crime of sodomy from church to state courts. Buggery was described as an act against God’s will. India had interpreted section 377 in a way in which it criminalised homosexual acts done between adults. The discrimination had lasted for decades and the section had marginalised several groups. It had increased the homophobic statements made across the nation. This article examines the degree and manner in which carnal intercourse against the natural order, as established by Section 377 of the Indian Penal Code, 1860, turns homosexuals into criminals. Section 377 is a statute that refers to homosexuality in general, not just anal sex. Owing to the absence of a consent-based distinction in the crime, homosexual sex has become synonymous with violence, and homosexuality has been equated with sexual perversity. The most extreme affront to the integrity and humanity of a large minority of Indian people is Section 377. This article analyses 5 cases which explains the procedural history and the statements made by the courts regarding section 377. Although it had come to an end due to the judgment given in 2018. The petitioners, who hail from various parts of the country and have a variety of religious, age, sex, and other backgrounds, say that section 377 legitimises the stigma associated with sexual orientation and its speech, which they claim is necessary, fundamental. The Supreme Court has struck down Section 377 of the Indian Penal Code, decriminalising a 158-year-old colonial law that forced consensual gay sex as an illegal act done.
Section 377: “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 10 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.
Section 377 of the Indian Penal Code 1860 had once the power to criminalise actions which include sexual actions between adults. The problem with this section was the vagueness of the details given which allowed homophobic interpretation of such law. This cruel section had been introduced in 1862. Initially, there had been the Criminal tribes Act 1862 which had criminalised people from the transgender community by calling them “innately criminal” and had not only oppressed several marginalised groups. Only one of the groups include the transgender group. Several lawyers had argued that the act had actually been created with certain inspiration from section 377. Although on the bright side, the law had been repealed due to the cruel intention behind it. In lay man terms, section 377 of the IPC 1860 had the intention of criminalising homosexuality and it had come under the term “unnatural offences”. It criminalised the action which included voluntary carnal intercourse against the order of nature. It includes the action with any person regardless of the gender and animals. Whoever had committed such an action could have been imprisoned for life or imprisoned for a term of 10 years which could include a fine that was to be paid by the convicted parties. However, the 172nd report of the Law Commission had actually made a recommendation which included section 377 being repealed but it had stayed on for several decades oppressing several people across India.
OPINIONS OF POLITICAL PARTIES
Several parties had rejected the amendments proposed and had interpreted homosexuality in an unethical manner. For example, the current defence minister, Rajnath Singh who is a member of the Bhartiya Janata Party had stated that homosexuality is an odd act, and it cannot be put in favour. He had also stated that the party was in favour of section 377 and the 2013 verdict which supported the criminalisation of homosexuality. The current Uttar Pradesh chief minister, Yogi Adityanath who was a member of the parliament back then and had supported the verdict and will fight any step taken to repeal section 377. The amendments proposed had been completely unsupported by the Samajwadi Party and they were in favour of section 377. The party collectively had stated that the section criminalises homosexuality which was ethically and morally questionable and that is why they are in favour. The BJP had been notorious in trying to reserve section 377 and a clear example is when Subramanian Swamy had stated that the concept of Hindutva had completely rejected homosexuality and is not a normal act. His statements had been so cruel which included him stating homosexuality is a mental illness and the members of the LGBTQ community needed medical consultation. Even the Congress party had initially been in support of section 377 as they were in support of the judgment given in the Naz foundation v. Govt of NCT Delhi and had stated that homosexuality violates the moral values. Thus, they were against the decriminalisation. However, eventually the congress party had come out in support of the decriminalisation of homosexuality as they believe that a person must have the freedom to choose their choice of sexuality and the decision is absolutely personal which does not allow the government or the judiciary to interfere. It can be connected to the freedom of expression included in Article 19 of part three of the constitution.
NAZ FOUNDATION V. GOVT OF NCT DELHI (2007)
Section 377 which had been brought in during the time the British ruled India. As stated earlier, the law prohibited “carnal intercourse against the order of nature”. Initially, the Naz foundation had started the movement which involved repealing section 377 and the NGO had filed a petition before the High Court of Delhi. The lawsuit had the intention of decriminalising homosexual activities that is done by adults with consent. The Delhi High Court declined to hear a petition questioning the law’s legality in 2003, arguing that the petitioners lacked locus standi in the case. The Naz Foundation filed an appeal with the Supreme Court of India, challenging the High Court’s decision to dismiss the petition on legal grounds. The Supreme Court ruled that the Naz Foundation had standing to bring a public-interest lawsuit in this case and remanded the appeal to the Delhi High Court for a fresh hearing on the merits. The National AIDS Control Group filed an affidavit in 2006 alleging that Section 377’s compliance violates LGBT rights. Following that, a Delhi-based group of LGBT, women’s, and human rights activists called “Voices Against 377” intervened in the case, endorsing the demand to “read down” section 377 to remove adult consensual sex from its reach. The Court found that criminalising consensual gay sex violated the rights to equality and privacy guaranteed by Article 21 (under the fundamental Right to Freedom charter) of the Constitution, and that it violated these rights.
The Court also found that Section 377 violates the constitutional guarantee of equality enshrined in Article 14 (under the fundamental Right to Equality charter) because it establishes an arbitrary classification and singles out homosexuals as a community. It was held that public hostility and indignation against a specific social category or disadvantaged minority is not a legitimate basis for classification under Article 14. Discrimination based on such factors, such as sex, is prohibited under Article 15 of the Constitution. According to the Court, the term “sex” encompasses not only biological sex but also sexual orientation, and therefore discrimination based on sexual orientation is prohibited under Article 15. The Court also observed that Article 21’s right to life requires the right to health, concluding that Section 377 is an impediment to public health because it obstructs HIV prevention efforts. The Court did not overturn Section 377 in its entirety. Insofar as it criminalises adults engaging in consensual sexual activities in private, the section has been declared unconstitutional. Insofar as it refers to non-consensual non-vaginal intercourse and intercourse with minors, the ruling upholds the clause. The court claimed that the decision would be in place before Parliament agreed to change the rule.
SURESH KUMAR KOUSHAL v. NAZ FOUNDATION (2013)
Suresh Kumar Koushal v. Naz Foundation 2013 and others in 2013, a two-judge Supreme Court bench headed by G. S. Singhvi and S. J. Mukhopadhaya reversed the Delhi High Court’s decision in Naz Foundation v. Govt. of NCT of Delhi and restored Section 377 of the Indian Penal Code. After multiple curative pleas were filed against it in 2017, the Supreme Court of India agreed to reconsider the decision. In Navtej Singh Johar v. Union of India, a five-judge Supreme Court bench reversed this ruling, decriminalising homosexuality. Parts of Section 377 relating to sex with minors, non-consensual sexual acts like rape, and bestiality, however, remain in effect. The Supreme Court of India reversed the Delhi High Court’s decision on 11 December 2013, citing inadequate ground to declare sections of section 377 unconstitutional. The judges noted that “lesbians, homosexuals, bisexuals, and transgender people make up a tiny fraction of the country’s population,” and that the High Court had erroneously relied on foreign precedents “in its anxiety to secure the so-called rights of LGBT people.” On December 11, 2013, the Supreme Court of India overturned the Delhi High Court’s 2009 ruling, stating that judicial interference was not required in this case. As a result, sexual activity was reclassified as “against the order of nature.” Considering the above debate, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality, and the declaration made by the Division Bench of the High Court is constitutionally unsustainable,” the Supreme Court bench of justices G. S. Singhvi and S. J. Mukhopadhaya wrote in their opinion. Both judges agreed, however, that the matter should be discussed and settled by Parliament. The constitutional validity of Section 377 of the Indian Penal Code, which renders anal sex a criminal offence, was upheld by a court of justices.
NLSA v. UNION OF INDIA (2014)
The Supreme Court of India’s landmark decision in National Legal Services Authority v. Union of India proclaimed transgender people to be the “third gender,” affirmed that the Constitution of India’s fundamental rights apply equally to them, and gave them the right to self-identify as male, female, or third gender. This decision has been hailed as a significant move toward gender equality in India. Furthermore, the court determined that because transgender people were viewed as socially and economically disadvantaged, they would be given preference in educational and employment admissions. The primary petitioner was NALSA. It was founded with the primary goal of providing free legal assistance to the poorest members of Indian society. The Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and non-governmental organisation, and Laxmi Narayan Tripathy, a well-known Hijra activist, were the other petitioners in the case. Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri made up a two-judge Supreme Court bench that heard the case. Prior to his appointment to the Supreme Court, Justice Radhakrishnan served as a Standing Counsel for a variety of educational and social organisations. Prior to his election to the Supreme Court, he served on the High Courts of Kerala, Jammu and Kashmir, and Gujarat. Justice Sikri began his legal career in Delhi, where he focused on constitutional law, labour and employment law, and arbitration. He served on the Delhi High Court and the Punjab and Haryana High Court before being elevated to the Supreme Court. The Supreme Court has ordered the federal and state governments to recognise gender identity, whether male, female, or third gender: Third Gender Legal Recognition: When the Supreme Court accepted the third gender group, it agreed that the third gender had the same basic rights as males and females. Furthermore, non-recognition of third gender in criminal and civil laws relating to marriage, adoption, divorce, and other matters is derogatory to transgender people. Persons transitioning within the male/female binary are entitled to legal recognition. The Court simply notes that they tend to follow the psyche of the individual and use the “Psychological Test” rather than the “Biological Test” when it comes to legal recognition for people who are transitioning within the male/female binary. They also state that requiring Sex Reassignment Surgery (SRS) to change one’s gender is unconstitutional. Public Health and Sanitation: The Centre and State Governments have been ordered to take appropriate steps to provide medical services for transgender people in hospitals, as well as separate public restrooms and other amenities. They’ve also been told to run a separate HIV/Sero-surveillance programme. Socioeconomic Rights: The Centre and State Governments have been asked to provide various social welfare schemes to the group and to regard it as a socially and economically backward class. They’ve also been asked to expand reservations in educational institutions and for government positions. Both are the broadest paths – stigma and public awareness. The Centre and State Governments were encouraged to take action to raise public awareness to better assist transgender people in integrating into society and ending their treatment as outcasts; to take steps to restore their respect and place in society; and to resolve issues such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, and social stigma. The Court points out that these declarations should be interpreted considering the Expert Committee Report on Transgender Issues issued by the Ministry of Social Justice and Empowerment.
JUSTICE K.S PUTTUSWAMY v. UNION OF INDIA (2012)
K.S. Puttaswamy, a retired High Court Judge, challenged the constitutionality of Aadhaar in 2012 before a nine-judge Supreme Court bench, claiming that it violates the right to privacy, which had been formed on a reference from the Constitution Bench to determine whether or not the right to privacy was guaranteed as an independent fundamental right. The issues involved are: Whether or not there is any fundamental right of privacy under the Constitution of India? Whether or not the decision made by the Court that there are no such fundamental rights in M.P. Sharma & Ors. vs. Satish Chandra, DM, Delhi & Ors. and also, in Kharak Singh vs. The State of U.P, is that the correct expression of the constitutional position? Privacy is to be an integral component of Part III of the Indian Constitution, which lays down citizens’ fundamental rights, according to the decision. The Supreme Court has noted that the state must strike a careful balance between individual privacy and the legitimate goal, at all costs, because constitutional rights cannot be granted or taken away by statute, and all laws and actions must be consistent with the constitution. The Court also stated that the right to privacy is not an absolute right, and that any violation of privacy by a state or non-state entity must pass the triple test, which includes the following:
1. Legitimate Aim
2. The proportionality principle
3. Compliance with the law
The decision in M P Sharma vs. Satish Chandra, which holds that the right to privacy is not protected by the Indian Constitution, is overturned; (ii) the decision in Kharak Singh vs. State of UP, to the extent that it holds that the right to privacy is not protected by the Constitution, is also overturned; and (iii) the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the constitution of India and as a part of the freedoms guaranteed by Part III of the Constitution.
NAVTEJ SINGH JOHAR v. UNION OF INDIA (2018)
On April 27, 2016, five people filed a new writ petition in the Supreme Court challenging Section 377 of the Indian Penal Code’s constitutionality. The petitioners argued that the issues they posed in their petition were different from those in the pending curative petition in the 2013 Koushal v. Naz case, in which the Supreme Court upheld Section 377’s constitutionality. The Naz had previously been assigned to a five-judge panel to determine if the curative petition should be considered. Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur were among the petitioners. This was the first case in which the petitioners alleged that Section 377 had affected them all, arguing that it was a direct infringement of their fundamental rights. Apostolic Alliance of Churches, Utkal Christian Council, and Trust God Ministries led the charge against decriminalisation petitions. The first two were represented by Advocate Manoj George, and the third by Senior Advocate KS Radhakrishnan. As long as it refers to “consensual actions of adults in private,” the NDA government took a neutral stand, leaving the decision to the “wisdom of the court.” The Supreme Court of India issued a judgement on September 6, 2018, overturning its own decision in Suresh Kumar Koushal vs. Naz Foundation, making all private consensual sexual acts between adults, including homosexual acts, legal. The court released a majority decision on September 6, 2018, ruling parts of the law relating to voluntary sexual acts between adults to be as legal. This ruling overturns the court’s decision in Suresh Kumar Koushal v. Naz Foundation in 2013, in which the rule was upheld. Other sections of Section 377, such as those dealing with sex with minors, non-consensual sexual activities, and bestiality, are still in effect. The court determined that criminalising sexual acts between consenting adults violated the Indian Constitution’s right to equality. Chief Justice Misra said in his reading of the decision that the court considered “criminalising carnal activity” to be “irrational, arbitrary, and manifestly unconstitutional. According to the court, LGBT citizens in India are entitled to all human rights, including the freedoms guaranteed by the Indian Constitution. “The freedom to find satisfaction in sexual intimacies, the right not to be subjected to oppressive conduct, and the choice of whom to marry are intrinsic to the constitutional defence of sexual orientation,” The ruling also stated that the LGBT community is entitled to equal citizenship and legal rights, free of discrimination.
The 5 judgments show how the interpretation of the section had evolved over the years. As stated earlier, the political parties had instigated and added upon the homophobic assumptions. However, in 2018, the judgment had been a step towards scraping the colonial law due to the several violations of fundamental rights it has caused. The members of the LGBTQ community had been marginalised and oppressed for several decades due to the existence of this section and seemed like a law that intentionally targeted such groups thus criminalising homosexuality. The judgment scraped the law and decriminalised the act which shows how India has made the right move towards social justice and upholding fundamental rights: article 14, 15, 19 and 21 of part three of the constitution.
Indian Penal Code, 1860, s.377 ↑
Naz Foundation v. Government of NCT of Delhi and Others (2007) WP(C) No.7455/2001 ↑
Suresh Kumar Koushal and another v. NAZ Foundation and others (2013) Civil Appeal No.10972 of 2013 ↑
NLSA vs. Union of India (2014) Writ Petition No. 400 of 2012 ↑
Justice K. S. Puttaswamy v. Union of India (2012) WP (C) 494/2012 ↑
Navtej Singh Johar & Ors. v. Union of India (2018) W. P. (Crl.) No. 76 of 2016 ↑