Malcolm Rivera
Section 377 of the Indian Penal Code (IPC) was an act that criminalised homosexuality and was introduced in 1861 during the British rule of India. It was used as a tool to intimidate and harass the LGBTQ+ community, leading to discrimination and abuse. In a landmark ruling on September 6, 2018, the Supreme Court of India decriminalised Section 377, allowing gay sex among consenting adults in private and recognising sexual orientation as natural. This decision sparked a movement for LGBTQ+ rights in India, with the community emerging from the shadows to express their true selves without fear of prosecution. However, social stigmas and intolerance remain prevalent, highlighting the need for continued progress toward a fully accepting and inclusive culture.
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Section 377 of the Indian Penal Code (IPC)
The law was first challenged in the Delhi High Court in 2001 by NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan, but both petitions were dismissed. However, in July 2009, the Delhi High Court decriminalised consensual homosexual activities between adults, stating that Section 377 of the IPC violated the fundamental rights of citizens. The judgement was overturned by the Supreme Court of India in 2013, which held that amending or repealing the section was a matter for Parliament.
On 6 September 2018, the Supreme Court of India ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, stating that it violated the right to dignity, privacy, and sexual autonomy, as well as freedom of expression and the right to equality and non-discrimination under the Indian Constitution. The Court's decision decriminalised same-sex relations and saw them as a part of the natural human order, allowing gay sex among consenting adults in private.
Despite this landmark ruling, there are still concerns about the lack of comprehensive anti-discrimination laws in India to protect the LGBTQ+ community from prejudice and harassment. Social stigmas, stereotypes, ignorance, and intolerance remain prevalent in Indian culture, and many institutions continue to discriminate against LGBTQ+ individuals. The ruling on Section 377 has, however, opened the door for the re-evaluation of colonial-era laws that police sexuality across the former British Empire, with the potential to reach many post-colonial nations.
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The law criminalised homosexuality
Section 377 of the Indian Penal Code (IPC) was introduced in 1861 during the British rule of India. The law criminalised homosexuality, referring to it as an 'unnatural offence' and stating that anyone who engaged in such acts could be punished with imprisonment for life. Specifically, it stated that:
> whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.
The law was rarely prosecuted, but it was used as a tool to intimidate and harass the LGBTQ+ community by the police and the state. It also gave policemen, government officials, and local village leaders free rein to discriminate against the LGBTQ+ population in India. For example, Arif Jafar, an Indian health counsellor, was arrested for aiding the queer community by providing them with condoms and other safe sex supplies. He was beaten and spent 47 days in jail, appearing in court every month for over a decade.
In July 2009, the Delhi High Court decriminalised sex between consenting adults of the same gender, stating that Section 377 violated Article 14, 15, and 21 of the Indian Constitution, which guarantee equal opportunity in life and before the law, freedom of expression, and dignity, privacy, and sexual autonomy, respectively. However, this judgement was overturned by the Supreme Court of India in December 2013, which held that amending or repealing Section 377 was a matter for Parliament, not the judiciary.
On September 6, 2018, the Supreme Court of India again reviewed Section 377, and in a landmark ruling, decriminalised homosexuality and allowed gay sex among consenting adults in private. The Court ruled that consensual adult gay sex is not a crime, stating that sexual orientation is natural and not a choice. This ruling sent a powerful message of equality and acceptance, not just in India but also in other former British colonies with similar anti-sodomy laws.
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It was introduced in 1861 during British rule
Section 377 of the Indian Penal Code (IPC) was introduced in 1861 during the British rule of India. It was modelled on the Buggery Act of 1533, which provided the legal model for the act of 'buggery' in the Offences Against the Person Act (1861).
The code was introduced by the authorities in the Raj in 1862, a year after it was implemented in India. It functioned as the legal impetus for the criminalisation of what was referred to as "unnatural offences" throughout the various colonies. The law was used to prosecute people engaging in oral and anal sex, along with homosexual activity.
Alok Gupta wrote in a 2008 Human Rights Watch report that the British intended for the code to prevent Christian colonial subjects from "corruption" and to condition colonised subjects undergoing Christianisation to conform to colonial authority. This had a significant impact on colonial-era sexuality in India.
Section 377 made sexual activities "against the order of nature" illegal. It stated that "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."
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The Supreme Court of India ruled it unconstitutional in 2018
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". This decision decriminalised same-sex relations between consenting adults, allowing LGBT individuals to legally engage in consensual intercourse. The Court upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.
The five judgments unanimously cited fundamental rights violations in reading down Section 377. They found that the law discriminated against individuals based on their sexual orientation and/or gender identity, violating Articles 14, 15, and 21 of the Constitution. The Court ruled that Section 377 infringes on the rights to life, dignity, and autonomy of personal choice under Article 21, as well as the right to freedom of expression under Article 19(1)(a).
The Supreme Court's decision was the culmination of years of court battles and decades of public protests. The first challenge to Section 377 was made in 2001 by NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan in the Delhi High Court, but both petitions were dismissed. In 2009, the Delhi High Court decriminalised sex between consenting adults of the same gender, holding it in violation of Articles 14, 15, and 21 of the Constitution. This judgement was overturned by the Supreme Court in 2013, which held that the decision to decriminalise homosexuality was a matter for Parliament, not the judiciary.
In 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the Puttaswamy judgement, implying the unconstitutionality of Section 377. In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment, and on 6 September 2018, the Court ruled unanimously that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". This ruling was a major step forward in LGBTQ+ rights and protections in India, allowing the LGBTQ+ community to emerge from the shadows and realise their true selves in public without fear of prosecution and imprisonment.
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The ruling decriminalised same-sex relations
On 6 September 2018, the Supreme Court of India decriminalised consensual homosexual sex between adults, ruling that the application of Section 377 in such cases was unconstitutional, "irrational, indefensible and manifestly arbitrary".
The ruling stated that Section 377 would remain in force relating to sex with minors, non-consensual sexual acts, and bestiality. The Court's decision was based on the recognition that sexual orientation is natural and not a choice, and that criminalising consensual same-sex relations violated the fundamental rights of citizens, including the right to equality, freedom of expression, dignity, privacy, and sexual autonomy.
The movement to decriminalise homosexuality in India faced a long and arduous journey. The law, introduced in 1861 during the British rule, referred to 'unnatural offences' and imposed harsh punishments for consensual same-sex relations. In 2001, the first legal challenge was initiated by NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan in the Delhi High Court, but both petitions were dismissed.
In a landmark judgement on 2 July 2009, the Delhi High Court decriminalised consensual homosexual activities between adults, stating that Section 377 violated the fundamental rights of citizens. This judgement was, however, overturned by the Supreme Court of India in December 2013, which held that amending or repealing the section was a matter for Parliament. Despite this setback, activists and allies in the Indian National Congress, such as Rahul Gandhi and Shashi Tharoor, continued to advocate for LGBT rights.
Finally, on 6 September 2018, the Supreme Court issued its historic ruling, decriminalising consensual same-sex relations between adults and affirming the equality and dignity of all citizens, regardless of sexual orientation. This ruling sent a powerful message not just within India but also to other nations that continue to criminalise homosexuality, offering hope and inspiration for ongoing struggles for LGBT rights worldwide.
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Frequently asked questions
Section 377 of the Indian Penal Code (IPC) was an act that criminalised homosexuality, introduced in 1861 during the British rule of India.
Section 377 referred to ''unnatural offences' and stated that anyone who voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life.
Section 377 was rarely prosecuted. Instead, it was used as a tool to intimidate and harass India's LGBTQ+ population, with policemen, government officials, and local village leaders discriminating against the community. It also allowed the state to regulate queer bodies.
Yes, 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". The ruling decriminalised same-sex relations between consenting adults and allowed gay sex among consenting adults in private.
