Gavin Howe
Section 377 is a colonial-era Indian law that criminalises homosexuality and sexual activities that are considered against the order of nature. Introduced in the mid-19th century during British rule, the law has been used to prosecute homosexual activity and marginalised communities, including transgender people. Despite efforts to repeal it, Section 377 remained in force until 2018 when the Supreme Court of India partially struck it down, decriminalising same-sex relations between consenting adults. However, the law still applies to non-consensual sexual acts and bestiality.
| Characteristics | Values |
|---|---|
| Year of introduction | 1860, 1861, or 1862 |
| Introduced by | British colonial authorities |
| Applies to | Homosexual activity, oral and anal sex |
| Punishment | Imprisonment for life or a minimum of 10 years |
| Status | Repealed in 2018 |
| Effect | Used to prosecute and discriminate against sexual minorities |
| Opposition | Ministry of Health and Family Welfare, Human Rights Watch, People's Union for Civil Liberties, literary figures, politicians |
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What You'll Learn
Section 377's impact on HIV/AIDS prevention efforts
Section 377 of the Indian Penal Code (IPC) was introduced in 1860 during British rule in India. It criminalised "carnal intercourse against the order of nature", which was used to prosecute homosexual activity. This law has had a significant impact on HIV/AIDS prevention efforts in India.
The law has been used to justify the unwarranted arrests and harassment of outreach workers and peer educators working with high-risk groups, including men who have sex with men (MSM). This has hindered the effective delivery of outreach services and prevented people from accessing essential HIV prevention, treatment, and care services. The National AIDS Control Organization (NACO) in India estimated that there are 2.35 million MSM in the country, and the latest figures show that the HIV prevalence in this group is the highest among all high-risk groups at 7.4%.
The criminalization of homosexuality has also driven people underground, making it much harder for health authorities to reach them with HIV prevention, treatment, and care services. This has resulted in a hidden epidemic, with only 6% of MSM having access to HIV prevention and treatment services, according to NACO. The fear of extortion, harassment, and violence at the hands of law enforcement authorities has made people reluctant to reveal their same-sex behaviour, further hampering HIV prevention efforts.
The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991, and their publication "Less than Gay: A Citizen's Report" highlighted the problems with the law and called for its repeal. In 2009, the Delhi High Court overturned Section 377, legalising consensual homosexual activities between adults. This was a landmark judgment that propelled India's AIDS response and human rights movement forward. However, in 2013, the Supreme Court overturned the Delhi High Court's decision, finding it "legally unsustainable".
In 2015 and 2016, Lok Sabha member Shashi Tharoor introduced a private member's bill to replace Section 377 and decriminalize consensual same-sex relations, but it was voted down both times. Finally, in 2018, the Supreme Court of India decriminalized Section 377, allowing gay sex among consenting adults in private. This judgment affirmed that sexual orientation is natural and that people have no control over it, and it was seen as a significant step forward for the dignity and human rights of MSM and transgender people in India.
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The law's colonial origins
Section 377 is a British colonial law that was introduced in 1860-1862 during the British rule of India. It was a provision in the Indian Penal Code that criminalized all sexual acts considered to be "against the order of nature". The law was used to prosecute people engaging in oral and anal sex, as well as homosexual activity, despite not explicitly mentioning homosexuality.
The law was first codified in the British Empire as Section 377 in the Indian Penal Code, stating:
> 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 a term which may extend to ten years, and shall also be liable to [a] fine.
This law was modelled on the Buggery Act of 1533, which criminalized similar acts in Britain. It was then exported to other colonies and even back to England, where it provided the legal model for the Offences Against the Person Act of 1861.
Alok Gupta, writing for Human Rights Watch in 2008, argued that the British intended for the code to prevent Christian colonial subjects from "corruption" and to ensure that colonized subjects undergoing Christianization would conform to colonial authority. This consequently had a significant impact on colonial-era sexuality in India.
Section 377 remained in force in India until 2018, when the Supreme Court of India ruled that its application to consensual homosexual sex between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary".
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The legal battle to overturn it
The legal battle to overturn Section 377 in India has been a long and protracted struggle by activists and members of the LGBTQ+ community. The law, introduced in 1860 to 1862 during British colonial rule, criminalised "carnal intercourse against the order of nature" and was used to prosecute homosexual activity and gender minorities.
The first recorded instance of legal pushback against the law came in 1991 when a document detailing the experiences of gay people in India was released by AIDS Bhedbhav Virodhi Andolan (ABVA), an organisation fighting discrimination against those affected by HIV or AIDS. In 1994, controversy erupted when Kiran Bedi, an inspector general of a jail in Delhi, refused to provide condoms to inmates, saying it would encourage homosexuality. In response, ABVA filed a writ petition in the Delhi High Court, demanding that Section 377 be recognised as unconstitutional. Despite efforts to mobilise support, the petition was dismissed in 2001.
In December 2001, the Naz Foundation, a sexual health NGO, filed a public interest litigation in the Delhi High Court, challenging the constitutionality of Section 377 and calling for the legalisation of homosexuality. This case was heard in May 2008, but the government was undecided on its position. Eventually, on 2 July 2009, the Delhi High Court overturned Section 377, legalising consensual homosexual activities between adults. The court stated that the section violated the fundamental rights to life, liberty, and equality as enshrined in the Indian Constitution.
However, critics challenged the Delhi High Court's decision in the Supreme Court, and in December 2013, the Supreme Court overturned the lower court's judgment, stating that Section 377 was not unconstitutional. This setback led to further activism and legal challenges. In June 2016, Navtej Singh Johar, an award-winning dancer, filed a writ petition in the Supreme Court, along with four other high-profile Indians, including chef Ritu Dalmia and hotelier Aman Nath. In April 2018, top hotelier Keshav Suri, who identifies as gay, also joined the fight by filing a petition with the Supreme Court.
Finally, on 6 September 2018, the Supreme Court of India, after years of court decisions and decades of public protest, ruled that the application of Section 377 to queer and trans sex was unconstitutional. The court found that the law discriminated against individuals based on their sexual orientation and/or gender identity, violating multiple articles of the Indian Constitution. This ruling decriminalised same-sex relations between consenting adults and was a significant victory for the LGBTQ+ community in India.
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The Supreme Court's 2018 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 five-judge bench announced that consensual adult gay sex is not a crime and that sexual orientation is natural and people have no control over it. The Court also observed that "sexual orientation is an essential attribute of privacy".
The Court upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals. The four judgments unanimously cited fundamental rights violations in reading down Section 377. They found 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 Constitution. The Court also held that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBT individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).
The 2018 ruling was the culmination of decades of grassroots activism and court battles. In 2001, NGO Naz Foundation and AIDS Bedhbhav Virodh Andolan first challenged the colonial-era law in the Delhi High Court. In 2009, the Delhi High Court decriminalised sex between consenting adults of the same gender, holding it in violation of Article 14, 15 and 21 of the Constitution of India. However, the judgement was overturned in 2013 by the Supreme Court, which found it to be "legally unsustainable". In 2014, the Supreme Court directed the government to declare transgender a 'third gender' and include them in the OBC quota. In 2016, five petitions were filed in the Supreme Court by LGBTQ activists claiming that their rights were being violated. In 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution. This judgement was believed to imply the unconstitutionality of Section 377.
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Section 377's violation of human rights
Section 377 of the Indian Penal Code (IPC) was introduced in 1860 during the British rule of India. It criminalised "carnal intercourse against the order of nature" and was used to prosecute people engaging in oral and anal sex, as well as homosexual activity. The law was repealed in 2018, but it had a significant impact on the LGBTQ+ community in India and was criticised for violating human rights.
The United Nations human rights chief, Navi Pillay, stated that the criminalisation of private, consensual same-sex conduct violates the rights to privacy and non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified. The UN also said that the ban violated international law.
In India, the law gave policemen, government officials, and local village leaders free rein to harass and discriminate against the LGBTQ+ population. This included the arrest of Arif Jafar, an Indian health counsellor who distributed condoms to the queer community to help them have safe sex and avoid HIV infection. After nearly three decades of aiding the LGBTQ+ community, Jafar was arrested, beaten, and spent 47 days in jail.
The People's Union for Civil Liberties published two reports on the rights violations faced by sexual minorities, particularly transsexuals in India. Human Rights Watch also argued that the law had been used to harass HIV/AIDS prevention efforts, sex workers, homosexuals, and other groups at risk of the disease. The Ministry of Health and Family Welfare opposed the upholding of Section 377, stating that it would hinder anti-HIV/AIDS efforts.
The Supreme Court of India's decision to decriminalise queer sexual activities by Section 377 in 2018 was a major step forward in LGBTQ+ rights and protections. The Court reasoned that discrimination based on sexual orientation was violative of the right to equality and that criminalising consensual sex between adults in private was violative of the right to privacy. The Court also stated that sexual orientation forms an inherent part of self-identity and denying it would be violative of the right to life.
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Frequently asked questions
Section 377 of the Indian Penal Code (IPC) is a British colonial-era law that criminalises homosexuality.
Section 377 criminalises "carnal intercourse against the order of nature", which has been interpreted to include homosexual activity, oral and anal sex, and sex with animals.
Section 377 was introduced in 1860 or 1861 during the British rule of India and came into force in 1862.
Yes, Section 377 has been challenged multiple times in the Indian courts. In 2009, the Delhi High Court ruled that Section 377 could not be used to punish sex between two consenting adults, but this decision was overturned by the Supreme Court in 2013. In 2018, the Supreme Court partially struck down Section 377, decriminalising same-sex relations between consenting adults.
Section 377 has been used to arrest and prosecute individuals engaging in homosexual activity, including LGBT activists and minors. It has also been criticised for hindering anti-HIV/AIDS efforts and contributing to discrimination and violence against sexual minorities.
