Cameron Miranda
Section 377 of the Indian Penal Code (IPC) is a colonial-era law that criminalises homosexuality. Introduced in 1861 during the British rule of India, the law refers to 'unnatural offences' and criminalises sexual activities that are against the order of nature. Despite public opinion that the law was repealed, it is still active and applicable to other offenses such as rape, bestiality, and sexual acts with minors. In 2018, the Supreme Court of India decriminalised the application of Section 377 to queer and trans sex, ruling that consensual adult gay sex is not a crime. This decision was a major step forward in LGBTQ+ rights and protections in India.
| Characteristics | Values |
|---|---|
| Date of introduction | 1860, 1861 or 1862 |
| Introduced by | British colonial rule |
| What it criminalises | Homosexuality, unnatural offences, sexual activities "against the order of nature", including oral and anal sex |
| Punishment | Imprisonment for life or for a term of 10 years, and a fine |
| Notable critics | Vikram Seth, Anbumani Ramadoss, Oscar Fernandes, Navi Pillay, Brinda Karat, Shashi Tharoor |
| Date decriminalised | 2 July 2009 (Delhi High Court), 6 September 2018 (Supreme Court of India) |
| What it applies to now | Rape, bestiality, sexual acts with minors, non-consensual sexual activity against adults |
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What You'll Learn
History of Section 377
Section 377 is a British colonial-era law that was introduced in India in 1860 or 1861 while the country was under British rule. The law was first codified in the British Empire as "carnal intercourse against the order of nature" in the Indian Penal Code. It criminalised unnatural offences that were deemed as sexual activities "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity, with punishments of up to 10 years in prison.
In 2009, the Delhi High Court ruled that Section 377 could not be used to punish sex between two consenting adults as it violates the right to privacy and personal liberty under Article 21 of the Indian Constitution. The Court held that classifying and targeting homosexuals violates the equal protection guarantee under Article 14 of the Constitution. Several organisations and individuals challenged this verdict, arguing that decriminalising homosexuality would be detrimental to the institution of marriage. The Supreme Court reversed the Delhi High Court's verdict in 2013, holding that the decision to decriminalise homosexuality could only be made by Parliament and not the Court.
In June 2016, Navtej Singh Johar, an award-winning Bharatanatyam dancer, filed a writ petition in the Supreme Court challenging Section 377, along with four other high-profile Indians, including chef Ritu Dalmia and hotelier Aman Nath. This was followed by a series of petitions filed by other individuals and organisations challenging the constitutionality of Section 377.
On September 6, 2018, the Supreme Court of India ruled that Section 377 of the Indian Penal Code was unconstitutional and violated the fundamental rights of individuals. The Court held that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14, 15, 19, and 21 of the Indian Constitution. The Court unanimously read down Section 377 and decriminalised same-sex relations between consenting adults, while upholding provisions that criminalise non-consensual acts or sexual acts performed on animals.
The Supreme Court's decision 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. However, it is important to note that social stigmas, stereotypes, ignorance, and intolerance towards the queer and trans community are still prevalent in Indian society, and there is still work to be done to educate the public and destigmatise LGBTQ+ issues. Additionally, while Section 377 has been partially struck down, it is still active and applicable to other offenses such as rape, bestiality, and sexual acts with minors.
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Criticism of Section 377
Firstly, Section 377 has been criticized for violating fundamental human rights, including the right to privacy, autonomy, and personal liberty. Criminalizing consensual sexual conduct between adults interferes with the private lives of individuals and denies them the freedom to make personal choices without state intervention. This goes against the principles of a democratic and liberal society that values individual freedom and dignity.
Secondly, the provision has been condemned for promoting discrimination and marginalization of lesbian, gay, bisexual, and transgender (LGBT) individuals and communities. By specifically targeting "carnal intercourse against the order of nature", the law has been used to persecute and stigmatize LGBT individuals, reinforcing social prejudices and contributing to an environment of fear and discrimination. This has had detrimental effects on the mental health, well-being, and social integration of LGBT people.
Thirdly, the vague and broad wording of Section 377 has been criticized for creating confusion and allowing arbitrary enforcement. The phrase "against the order of nature" is not clearly defined, leading to varying interpretations and potential misuse. This ambiguity has resulted in selective and discriminatory application of the law, with some acts being prosecuted while others are ignored, depending on societal biases and the discretion of law enforcement officials.
Additionally, Section 377 has been criticized for hindering public health efforts, particularly in the context of HIV/AIDS prevention and treatment. The criminalization of same-sex relationships creates a barrier for individuals who may be at risk of HIV infection to access prevention, testing, and treatment services. Fear of prosecution and social stigma associated with Section 377 deter many from seeking information, counseling, or medical care, thereby exacerbating the impact of the HIV/AIDS epidemic.
Furthermore, critics argue that Section 377 is a colonial-era relic that imposes Western moral values on a diverse society. Enacted during British rule in India, the law reflects Victorian-era attitudes towards sexuality and does not align with the cultural and social values of a modern, independent India. Retaining such a law is seen as a form of cultural imperialism that ignores the rich diversity of sexual practices and traditions that exist within India's varied communities.
Finally, there is criticism that Section 377 has led to police harassment and abuse of power. The law has been used to intimidate, extort, and wrongfully detain individuals, particularly those from marginalized communities. Reports of police entrapment, where individuals are lured into situations that lead to their arrest, and of abuse of power by law enforcement officials, underscore the potential for misuse and the negative impact on the lives of those targeted.
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Section 377 and human rights
Section 377 of the Indian Penal Code (IPC) is a colonial-era law that was introduced in 1860 or 1861 during the British rule of India. It criminalised "carnal intercourse against the order of nature" and was used to prosecute homosexual activity, oral and anal sex. The law has been criticised by human rights groups and the United Nations for violating the rights to privacy and non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified.
In recent years, there have been significant legal challenges to Section 377. In 2001, the NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan challenged the law in the Delhi High Court. In 2008, the Delhi High Court again played a crucial role in the fight against Section 377 when a judge called for the scrapping of the law. This was followed by a historic judgement in 2009, where the Delhi High Court overturned Section 377, legalising consensual homosexual activities between adults. The court stated that the essence of Section 377 went against the fundamental human rights of citizens.
Despite this progress, the law was reinstated in 2013 by the Supreme Court, which found the High Court's judgement "legally unsustainable". This decision was met with disappointment and criticism from various political parties, literary figures, and human rights activists, who argued that it violated the human rights and freedoms of LGBTQ+ individuals.
Finally, on September 6, 2018, the Supreme Court of India decriminalised Section 377 with respect to consensual adult gay sex, stating that sexual orientation is natural and people have no control over it. The court ruled that the application of Section 377 to queer and trans sex was unconstitutional and infringed upon the freedoms of LGBTQ+ people.
While the decriminalisation of Section 377 is a significant step forward for human rights in India, there are still concerns about social stigmas, stereotypes, ignorance, and intolerance towards the queer and trans community. Additionally, the lack of comprehensive anti-discrimination laws in India has allowed discrimination against LGBTQ+ individuals in private companies and government institutions to persist.
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The 2018 Supreme Court ruling
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 judgement was delivered by a five-judge bench comprising the then Chief Justice of India Dipak Misra, and Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra. The bench gave four separate but concurring judgments.
The Court held that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14, 15, and 21 of the Indian Constitution. The Court ruled that sexual orientation is an essential attribute of privacy and that people have no control over their sexual orientation. It observed that the Indian Constitution reflects the deeply ingrained value of inclusiveness in Indian society, which assures those perceived as 'deviants' or 'different' by the majority a life of dignity and non-discrimination.
The Court upheld provisions in Section 377 that criminalise non-consensual acts, sexual acts performed on animals, and sex with minors. The Court's ruling partially struck down the colonial-era provisions of Section 377, effectively decriminalising homosexuality and allowing gay sex among consenting adults in private.
The judgement came after decades of grassroots activism and several legal challenges. The colonial-era law was first challenged in the Delhi High Court in 2001 by NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan. In 2009, the Delhi High Court ruled that Section 377 could not be used to punish sex between two consenting adults. However, this judgement was overturned by the Supreme Court in 2013, which held that the decision to decriminalise homosexuality could only be made by Parliament and not the Court. In 2017, the Supreme Court upheld the right to privacy as a fundamental right, a judgement that was believed to imply the unconstitutionality of Section 377.
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LGBTQ+ rights in India
In India, LGBTQ+ people have been increasingly tolerated and accepted since the 2010s. In 2023, a Pew Research Center poll found that 53% of Indians supported the legalisation of same-sex marriage, while 43% were opposed. However, the LGBTQ+ community in India still faces significant challenges and discrimination.
Section 377 of the Indian Penal Code (IPC) was a colonial-era law introduced in 1860 that criminalised homosexuality. 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". In 2006, Section 377 came under criticism from Indian literary figures, ministers, and the United Nations, who stated that the ban violated international law. Despite this, the law was reinstated in 2013.
In 2018, the Supreme Court of India decriminalised Section 377, allowing gay sex among consenting adults in private. The Court ruled that consensual adult gay sex is not a crime, and that sexual orientation is natural and something people have no control over. This decision was hailed as a historic victory for LGBTQ+ rights in India. The Court also directed the Government to take measures to broadcast the fact that homosexuality is not a criminal offence, to create public awareness, and to eliminate the stigma faced by the LGBTQ+ community.
Despite this progress, same-sex couples in India continue to face harassment in many communities, and the government has resisted the legal recognition of same-sex marriage. In 2023, India's Supreme Court declined to legalise same-sex marriage, stating that it was a legislative function and passing the responsibility to Parliament. However, the Court has affirmed the rights of LGBTQ+ persons to choose a partner, cohabit, and enjoy physical and mental intimacy, free from physical threat and coercive action. The right to change legal gender is also legal in India, but it requires surgery, which has been challenged as unconstitutional.
Overall, while there have been significant advancements in LGBTQ+ rights in India, particularly with the decriminalisation of homosexuality, there are still ongoing struggles for full legal recognition and protection from discrimination.
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Frequently asked questions
Section 377 is a British colonial Indian Penal Code that criminalized all sexual acts "against the order of nature".
Section 377 made it illegal to engage in unnatural offenses, including homosexual activity, oral and anal sex, and sexual activity with animals.
No, Section 377 has not been repealed, but it is no longer applicable to consensual homosexual acts between adults. The law still applies to other offenses such as rape, bestiality, and sexual acts with minors.
Section 377 was used to discriminate against and harass LGBTQ+ individuals in India, leading to fear of prosecution and imprisonment. The law was also cited as an inspiration for other discriminatory laws, such as the Criminal Tribes Act, which branded marginalized groups like transgender people as "innately criminal".
