A five judge constitutional bench comprised of Chief Justice Dipak Misra, Justice RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra are hearing a clutch of petitions seeking decriminalisation of Section 377 of the Indian Penal Code.
Section 377 of IPC states:
377. 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 term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
Section 377 clearly violates Article 14 of the Constitution, which guarantees all people “equality before the law;” Article 15, which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty.”
This also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.
When was it implemented ?
Section 377 was drafted by Thomas Macaulay around 1838 but was brought into effect in 1860. This law was modelled on “The Buggery Act 1533” enacted under King Henry VIII. This law defined ‘buggery’ as an unnatural sexual act against the will of God and man. Thus, this criminalised anal penetration, bestiality and in a broader sense homosexuality.
In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, but also homosexuals. This act is what is considered to be the inspiration for Section 377 of the Indian Penal Code. In years to come this Act would be repealed by the British and replaced by the Offences against the Person Act 1861.
By the Sexual Offences Act 1967, Homosexuality was decriminalised in UK. Intrestingly, the Indian government still follows the archaic law.
1. In July 2009, the Delhi High Court said that Section 377 of IPC was a violation of fundamental rights and decriminalised the same.
2. Supreme Court overturned the HC’s decision in December 2013 saying that amending/repealing Section 377 should be Parliament’s decision and not of the High Court.
3. In February 2016, the hearing of petition submitted by Naz Foundation was carried out. The then CJI TS Thakur heading a three-member bench said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench later.
4. In August 2017, the Supreme Court ruled out a 547-page-long judgment on Right to Privacy and said that sexual orientation is an important attribute of privacy. The Supreme Court also 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.
5. On 10 July 2018, a five member bench led by CJI Dipak Misra commences the hearing seeking decriminalisation of Section 377.
Where do the political parties stand on Section 377 ?
Union Home Minister Rajnath Singh, after 2013 verdict had said, “We support Section 377 because we believe that homosexuality is an unnatural act and that cannot be supported.”
On the contrary, finance minister Arun Jaitley had said, “When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed.”
Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leader Derek O’ Brien, CPI (M) leader Brinda Karat, the Aam Aadmi Party among others had come out in support of the LGBT community and had said that homosexuality should be decriminalized.
BJP MP Subramanian Swami has said , “Homosexuality is not a normal thing. We cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured.”
26 Countries that have legalised Same-Sex marriage:
Netherlands (2000), Belgium (2003), Spain (2005), Canada (2005), South Africa (2006), Norway (2008), Sweden (2009), Mexico (2009), Iceland (2010), Argentina (2010), Portugal (2010), Denmark (2012), Uruguay (2013), Brazil (2013), England & Wales (2013), New Zealand (2013), France (2013), Luxembourg (2014), Scotland (2014), Greenland (2015), Ireland (2015), United States of America (2015), Finland (2015), Colombia (2016), Australia (2017), Malta (2017) and Germany (2017).
It’s high time now that the Supreme Court uphold the right to privacy, equality, liberty and abolish the archaic Section 377 of the IPC.
(Data has been collected from various sources)