Section 377 of the
British colonial
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
penal code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
criminalized all
sexual acts
Human sexual activity, human sexual practice or human sexual behaviour is the manner in which humans experience and express their sexuality. People engage in a variety of sexual acts, ranging from activities done alone (e.g., masturbation) t ...
"against the order of nature". The law was used to prosecute people engaging in
oral
The word oral may refer to:
Relating to the mouth
* Relating to the mouth, the first portion of the alimentary canal that primarily receives food and liquid
**Oral administration of medicines
** Oral examination (also known as an oral exam or oral ...
and
anal sex
Anal sex or anal intercourse is generally the insertion and thrusting of the erect penis into a person's anus, or anus and rectum, for sexual pleasure.Sepages 270–271for anal sex information, anpage 118for information about the clitoris. ...
along with
homosexual
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to peop ...
activity. The
penal code
A criminal code (or penal code) is a document that compiles all, or a significant amount of a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...
remains in many former colonies, such as India (but has been repealed in Singapore) and has been used to criminalize
third gender
Third gender is a concept in which individuals are categorized, either by themselves or by society, as neither man nor woman. It is also a social category present in societies that recognize three or more genders. The term ''third'' is usually ...
people, such as the ''
apwint'' in
Myanmar
Myanmar, ; UK pronunciations: US pronunciations incl. . Note: Wikipedia's IPA conventions require indicating /r/ even in British English although only some British English speakers pronounce r at the end of syllables. As John C. Wells, Joh ...
.
In 2018,
British Prime Minister
The prime minister of the United Kingdom is the head of government of the United Kingdom. The prime minister advises the sovereign on the exercise of much of the royal prerogative, chairs the Cabinet and selects its ministers. As modern p ...
Theresa May
Theresa Mary May, Lady May (; née Brasier; born 1 October 1956) is a British politician who served as Prime Minister of the United Kingdom and Leader of the Conservative Party from 2016 to 2019. She previously served in David Cameron's cab ...
acknowledged how the legacies of British colonial anti-sodomy laws continue to persist today in the form of discrimination, violence, and death.
History
Although the act of sodomy was sometimes prosecuted in England under British
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
, it was first
codified in the
British empire
The British Empire was composed of the dominions, colonies, protectorates, mandates, and other territories ruled or administered by the United Kingdom and its predecessor states. It began with the overseas possessions and trading posts esta ...
as Section 377 in the
Indian Penal Code
The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted on the recommendations of first law commission of India established in ...
as "carnal intercourse against the order of nature" in 1860. Section 377 was then exported to other colonies and even to England itself, providing the legal model for the act of '
buggery' in the
Offenses Against the Person Act (1861).
Alok Gupta wrote for a
Human Rights Watch
Human Rights Watch (HRW) is an international non-governmental organization, headquartered in New York City, that conducts research and advocacy on human rights. The group pressures governments, policy makers, companies, and individual human r ...
report in 2008 that the British intended for the code to prevent
Christian
Christians () are people who follow or adhere to Christianity, a monotheistic Abrahamic religion based on the life and teachings of Jesus Christ. The words ''Christ'' and ''Christian'' derive from the Koine Greek title ''Christós'' (Χρι ...
colonial subjects from "
corruption
Corruption is a form of dishonesty or a criminal offense which is undertaken by a person or an organization which is entrusted in a position of authority, in order to acquire illicit benefits or abuse power for one's personal gain. Corruption m ...
" and condition colonized subjects undergoing
Christianization
Christianization ( or Christianisation) is to make Christian; to imbue with Christian principles; to become Christian. It can apply to the conversion of an individual, a practice, a place or a whole society. It began in the Roman Empire, conti ...
to conform to colonial authority.
Although Section 377 did not explicitly include the word ''homosexual'', it has been used to prosecute
homosexual
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to peop ...
activity. The provision was introduced by authorities in the
Raj
Raj or RAJ may refer to:
History
* British Raj, the 1858–1947 rule of the British Crown over India
* Company Raj, the 1757–1858 rule of the East India Company in South Asia
* Licence Raj, the Indian system of elaborate licences, regulation ...
in 1862 as
Section 377 of the Indian Penal Code
Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. The penal code remains in many former col ...
and functioned as the
legal
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
impetus behind the
criminalization
Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals". Previously legal acts may be transformed into crimes by legislation or judicial decision. However, ...
of what was referred to as, "unnatural offenses" throughout the various colonies, in several cases with the same section number.
Although most colonies have since gained
independence
Independence is a condition of a person, nation, country, or state in which residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory. The opposite of independence is the statu ...
through
statehood
A state is a centralized political organization that imposes and enforces rules over a population within a territory. There is no undisputed definition of a state. One widely used definition comes from the German sociologist Max Weber: a "sta ...
since Section 377 was implemented, it remains in the
penal codes
Penal is a town in south Trinidad, Trinidad and Tobago. It lies south of San Fernando, Princes Town, and Debe, and north of Moruga, Morne Diablo and Siparia. It was originally a rice- and cocoa-producing area but is now a rapidly expanding and de ...
of the following countries:
* Bangladesh
* Malaysia
* Myanmar
* Pakistan
* Sri Lanka (as Section 365)
India
Section 377 of the Indian Penal Code is a section of the
Indian Penal Code
The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted on the recommendations of first law commission of India established in ...
introduced in 1861 during the
British rule of India
The British Raj (; from Hindi ''rāj'': kingdom, realm, state, or empire) was the rule of the British Crown on the Indian subcontinent;
*
* it is also called Crown rule in India,
*
*
*
*
or Direct rule in India,
* Quote: "Mill, who was himsel ...
. Modeled on the
Buggery Act of 1533, it makes sexual activities "against the order of nature" illegal. On 6 September 2018, the
Supreme Court of India
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
ruled that the application of Section 377 to consensual
homosexual sex between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary", but that Section 377 remains in force relating to sex with
minors,
non-consensual
Consent occurs when one person voluntarily agrees to the proposal or desires of another. It is a term of common speech, with specific definitions as used in such fields as the law, medicine, research, and sexual relationships. Consent as und ...
sexual acts, and
bestiality.
Portions of the section were first struck down as unconstitutional with respect to
gay sex
Gay sexual practices are sexual activities involving men who have sex with men (MSM), regardless of their sexual orientation or sexual identity. These practices can include anal sex, non-penetrative sex, and oral sex. Evidence shows that sex betw ...
by the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
in July 2009. That judgement was overturned by the
Supreme Court of India
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
(SC) on 11 December 2013 in ''
Suresh Kumar Koushal vs. Naz Foundation
Suresh Kumar Koushal v. NAZ Foundation (2013) is a case in which a 2 judge Supreme Court bench consisting of G. S. Singhvi and S. J. Mukhopadhaya overturned the Delhi High Court case ''Naz Foundation v. Govt. of NCT of Delhi'' and reinstate ...
''. The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Court reviewed curative petitions submitted by the
Naz Foundation and others, and decided that they would be reviewed by a five-member constitutional bench.
On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark ''
Puttaswamy'' judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the
fundamental rights
Fundamental rights are a group of rights that have been recognized by a high degree of protection from encroachment. These rights are specifically identified in a constitution, or have been found under due process of law. The United Nations' Sustai ...
and that the rights of the
LGBT
' is an initialism that stands for lesbian, gay, bisexual, and transgender. In use since the 1990s, the initialism, as well as some of its common variants, functions as an umbrella term for sexuality and gender identity.
The LGBT term is a ...
population are real and founded on constitutional doctrine.
This judgement was believed to imply the unconstitutionality of section 377.
In January 2018, the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
agreed to hear a petition to revisit the 2013 ''Naz Foundation'' judgment. On 6 September 2018, the Court ruled unanimously in ''
Navtej Singh Johar v. Union of India
Navtej Singh Johar v. Union of India Secretary Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.
The court was asked to dete ...
'' that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". The judgment was given by a five judges bench comprising the then Chief Justice of India
Dipak Misra
Justice Dipak Misra (born 3 October 1953) is an Indian jurist who served as the 45th Chief Justice of India from 28 August 2017 till 2 October 2018. He is also former Chief Justice of the Patna High Court and Delhi High Court. He is the nephe ...
, Justices
R. F. Nariman,
D. Y. Chandrachud,
A. M. Khanwilkar and
Indu Malhotra
Indu Malhotra is a retired judge and senior counsel of the Supreme Court of India. She was the second woman to be designated as Senior Advocate by the Supreme Court. She was the first woman advocate to be elevated as a judge of the Supreme C ...
.
Text
Public perception
Support
In 2008 Additional
Solicitor General PP Malhotra said: "
Homosexuality
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to peop ...
is a social vice and the state has the power to contain it.
ecriminalising homosexualitymay create
breach of peace. If it is allowed then
heevil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." This view was shared by the
Home Ministry
An interior ministry (sometimes called a ministry of internal affairs or ministry of home affairs) is a government department that is responsible for internal affairs.
Lists of current ministries of internal affairs
Named "ministry"
* Ministry ...
.
11 December 2013 judgement of the Supreme Court, upholding Section 377 was met with support from religious leaders. The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each other’s religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment" The ''Daily News and Analysis'' article added that Baba
Ramdev
Ramdev (born Ram Kisan Yadav in 1965), also referred to by his followers with the honorifics Baba or Swami, is an Indian yoga guru, businessman and brand ambassador for Patanjali Ayurved. Ramdev is primarily known for being a proponent of yog ...
, India's well-known yoga guru, after praying that journalists not "turn homosexual", stated he could "cure" homosexuality through yoga and called it "a bad addiction".
Opposition and criticism
The
Ministry of Health and Family Welfare
The Ministry of Health and Family Welfare is an Indian government ministry charged with health policy in India. It is also responsible for all government programs relating to family planning in India.
The Minister of Health and Family Welfare ...
opposed the upholding of Section 377, stating that it would hinder anti-
HIV/AIDS
Human immunodeficiency virus infection and acquired immunodeficiency syndrome (HIV/AIDS) is a spectrum of conditions caused by infection with the human immunodeficiency virus (HIV), a retrovirus. Following initial infection an individual ...
efforts. According to the
NCRB
The National Crime Records Bureau, abbreviated to NCRB, is an Indian government agency responsible for collecting and analyzing crime data as defined by the Indian Penal Code (IPC) and Special and Local Laws (SLL). NCRB is headquartered in New ...
, in 2015, 1,491 people were arrested under Section 377, including 207 minors (14%) and 16 women.
Human Rights Watch
Human Rights Watch (HRW) is an international non-governmental organization, headquartered in New York City, that conducts research and advocacy on human rights. The group pressures governments, policy makers, companies, and individual human r ...
also argued that the law had been used to harass
HIV/AIDS
Human immunodeficiency virus infection and acquired immunodeficiency syndrome (HIV/AIDS) is a spectrum of conditions caused by infection with the human immunodeficiency virus (HIV), a retrovirus. Following initial infection an individual ...
prevention efforts, as well as
sex worker
A sex worker is a person who provides sex work, either on a regular or occasional basis. The term is used in reference to those who work in all areas of the sex industry.Oxford English Dictionary, "sex worker"
According to one view, sex work is d ...
s,
homosexuals
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to pe ...
, and other groups at risk of the disease, even though those found guilty of extortion in relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of the IPC. The
People's Union for Civil Liberties
People's Union for Civil Liberties (PUCL) is a human rights body formed in India in 1976 by Jayaprakash Narayan, as the People's Union for Civil Liberties and Democratic Rights (PUCLDR).
Background
Indian emergency
Jayaprakash Narayan was a G ...
has published two reports on the rights violations faced by sexual minorities and, in particular,
transsexual
Transsexual people experience a gender identity that is inconsistent with their assigned sex, and desire to permanently transition to the sex or gender with which they identify, usually seeking medical assistance (including sex reassignment ...
s in India.
In 2006, Section 377 came under criticism from 100 Indian literary figures, most prominently
Vikram Seth
Vikram Seth (born 20 June 1952) is an Indian novelist and poet. He has written several novels and poetry books. He has won several awards such as Padma Shri, Sahitya Academy Award, Pravasi Bharatiya Samman, WH Smith Literary Award and Crosswor ...
. The law subsequently drew even more criticism from several ministers, most prominently
Anbumani Ramadoss
Anbumani Ramadoss is an Indian politician from Tamil Nadu, India. He rose to prominence as Vanniyar leader after 2010. He is a member of the Rajya Sabha, the upper house of the Parliament of India from Tamil Nadu. Anbumani was the Minister ...
and
Oscar Fernandes
Dr. Oscar Fernandes (27 March 1941 – 13 September 2021) was an Indian politician, a senior Indian National Congress leader and was the Union Cabinet Minister for Transport, Road and Highways and Labour and Employment, Government of India in ...
. In 2008, a judge of the
Bombay High Court
The High Court of Bombay is the high court of the states of Maharashtra and Goa in India, and the union territory of Dadra and Nagar Haveli and Daman and Diu. It is seated primarily at Mumbai (formerly known as Bombay), and is one of the ol ...
also called for the scrapping of the law.
The
United Nations
The United Nations (UN) is an intergovernmental organization whose stated purposes are to maintain international peace and international security, security, develop friendly relations among nations, achieve international cooperation, and be ...
also said that the ban violated international law.
United Nations human rights
The Office of the United Nations High Commissioner for Human Rights, commonly known as the Office of the High Commissioner for Human Rights (OHCHR) or the United Nations Human Rights Office, is a department of the Secretariat of the United Nati ...
chief
Navi Pillay
Navanethem "Navi" Pillay (born 23 September 1941) is a South African jurist who served as the United Nations High Commissioner for Human Rights from 2008 to 2014. A South African of Indian Tamil origin, she was the first non-white woman judge of ...
stated that "Criminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified", and that the decision "represents a significant step backwards for India and a blow for human rights.", voicing hope that the Court might exercise its review procedure.
View of political parties
Opposition
Rajnath Singh
Rajnath Singh (; born 10 July 1951) is an Indian politician serving as the Defence Minister of India. He is currently the Deputy Leader of the House Lok Sabha. He is the former President of Bharatiya Janata Party. He has previously served as t ...
, a member of the ruling party
BJP
The Bharatiya Janata Party (BJP; ; ) is a political party in India, and one of the two major Indian political parties alongside the Indian National Congress. Since 2014, it has been the ruling political party in India under Narendra Modi ...
and the Home Minister, is on record shortly after the law was re-instated in 2013, claiming that his party is "unambiguously" in favour of the law, also claiming that "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”
, BJP
MP, welcomed the 2013 verdict and will "oppose any move to decriminalise homosexuality."
The
Samajwadi Party
The Samajwadi Party ( SP; translation: ''Socialist Party'', founded 4 October 1992) is a Socialism, socialist political party in India, headquartered in New Delhi but mainly based in Uttar Pradesh, with significant presence in other states as w ...
made it clear that it will oppose any amendments to the section if it comes in Parliament for discussion, calling homosexuality "unethical and immoral."
Ram Gopal Yadav
Ram Gopal Yadav (born 29 June 1946) is an India, Indian politician from Uttar Pradesh. He is the Secretary-General of the Samajwadi Party and the Member of Parliament, Rajya Sabha, Member of Parliament (MP) in Rajya Sabha, since 2008. Yadav al ...
stated that they support the Supreme Court decision as "It is completely against the culture of our nation."
The Congress party-led
UPA government
United Progressive Alliance (UPA) is a centre-left political alliance of predominantly left-leaning political parties in India. It was formed after the 2004 general election with support from left-leaning political parties when no single party ...
also supported the law during the initial
Naz Foundation case, stating that gay sex was 'immoral' and that it cannot be decriminalized.
Bharatiya Janata Party
The Bharatiya Janata Party (BJP; ; ) is a political party in India, and one of the two major Indian political parties alongside the Indian National Congress. Since 2014, it has been the ruling political party in India under Narendra Modi ...
leader
Subramanian Swamy
Subramanian Swamy (born 15 September 1939) is an Indian politician, economist and statistician. Before joining politics, he was a professor of Mathematical Economics at the Indian Institute of Technology, Delhi. He is known for his Hindu na ...
said that homosexuality was not a normal thing and was against
Hindutva
Hindutva () is the predominant form of Hindu nationalism in India. The term was formulated as a political ideology by Vinayak Damodar Savarkar in 1923. It is used by the Rashtriya Swayamsevak Sangh (RSS), the Vishva Hindu Parishad (VHP), the ...
. He went on to say that it was "a danger to our national security" and that the government should invest in medical research to see if homosexuality can be cured. He added that "there is a lot of money behind it. The Americans want to open gay bars, and it'll be a cover for
paedophiles
Pedophilia ( alternatively spelt paedophilia) is a psychiatric disorder in which an adult or older adolescent experiences a primary or exclusive sexual attraction to prepubescent children. Although girls typically begin the process of puberty a ...
and a huge rise in HIV cases."
Most political parties which opposed homosexuality previously had reversed their stand after the 2018 verdict by the Supreme Court, except
Indian Union Muslim League
The Indian Union Muslim League (abbreviated as the I. U. M. L. or the League) is an Indian political party primarily based in the Indian state of Kerala. It is recognised as a State Party in Kerala by the Election Commission of India.
The first ...
which continued to oppose saying that 'homosexuality is against Indian culture'.
Support
Former Finance Minister and BJP member
Arun Jaitley
Arun Jaitley (28 December 1952 – 24 August 2019) was an Indian politician and attorney. A member of the Bharatiya Janata Party, Jaitley served as the Minister of Finance and Corporate Affairs of the Government of India from 2014 to 2019. Jait ...
said that "Supreme Court should not have reversed the Delhi High Court order which de-criminalized consensual sex between gay adults" and "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."
BJP spokesperson
Shaina NC
Shaina Nana Chudasama (born 1 December 1972), better known by her abbreviated name Shaina NC, is an Indian fashion designer, politician, and social worker. Daughter of the former Sheriff of Mumbai, her father, Nana Chudasama, was a well known c ...
said her party supports decriminalisation of homosexuality. "We are for decriminalising homosexuality. That is the progressive way forward."
In December 2013,
Indian National Congress
The Indian National Congress (INC), colloquially the Congress Party but often simply the Congress, is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Em ...
President
Rahul Gandhi
Rahul Gandhi ( ; born 19 June 1970) is an Indian politician and a member of the Indian Parliament, representing the constituency of Wayanad, Kerala in the 17th Lok Sabha. A member of the Indian National Congress, he served as the president of ...
came out in support of LGBT rights and said that "every individual had the right to choose". He also said "These are personal choices. This country is known for its freedom, freedom of expression. So let that be. I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement", he said. The LGBT rights movement in India was also part of the election manifesto of the Congress for the 2014 general elections.
Sonia Gandhi
Sonia Gandhi ('' née'' Maino; born 9 December 1946) is an Indian politician. She is the longest serving president of the Indian National Congress, a social democratic political party, which has governed India for most of its post-independ ...
also shared a similar view. Senior Congress leader and former Finance Minister
P. Chidambaram
Palaniappan Chidambaram (born 16 September 1945), better known as P. Chidambaram, is an Indian politician and lawyer who currently serves as Member of Parliament, Rajya Sabha. He served as the Chairman of the Parliamentary Standing Committee ...
stated that the 2013 ''Suresh Kumar Koushal vs. Naz Foundation'' judgement must be quickly reversed.
He also said that "Section 377, in my view, was rightly struck down or read down by the Delhi High Court judgement by Justice AP Shah."
The
RSS
RSS ( RDF Site Summary or Really Simple Syndication) is a web feed that allows users and applications to access updates to websites in a standardized, computer-readable format. Subscribing to RSS feeds can allow a user to keep track of many di ...
revised its position, the leader Dattatreya Hosabale reportedly saying, "no criminalisation, but no glorification either."
RSS leader Bhagwat also came out in support of the LGBTQIA+ community stating that they should be accepted as an integral part of society.
After the 2013 verdict, the
Aam Aadmi Party
The Aam Aadmi Party (; AAP) is a political party in India, as one of the national political parties. The AAP was founded in November 2012 by Arvind Kejriwal and his then-companions following the 2011 Indian anti-corruption movement, popular ...
put on their website:
Brinda Karat
Brinda Karat (born 17 October 1947) is an Indian politician, elected to the Rajya Sabha as a Communist Party of India (Marxist) member on 11 April 2005 for West Bengal.
In 2005, she became the first woman member of the CPI(M) Politburo. She ...
of the
Communist Party
A communist party is a political party that seeks to realize the socio-economic goals of communism. The term ''communist party'' was popularized by the title of ''The Manifesto of the Communist Party'' (1848) by Karl Marx and Friedrich Engels. A ...
said the SC order was retrograde and that criminalising alternative sexuality is wrong.
Shivanand Tiwari
Shivanand Tiwari (born 1943) is a prominent politician from Bhojpur district, Bihar who was a member and an officer of the Janata Dal (United) political party, which he represented in the Rajya Sabha. First he was a prominent leader and spokesp ...
, leader of
Janata Dal United
Janata Dal (United) ("People’s Party (United)”) abbreviated as JD(U) is an Indian political party with political presence mainly in eastern and north-eastern India. JD(U) is recognised as a state party in the states of Bihar , Arunachal Pra ...
, did not support the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
decision, calling
homosexuality
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to peop ...
practical and constitutional. He added that "This happens in society and if people believe it is natural for them, why is the Supreme Court trying to stop them?"
Derek O'Brien of the
Trinamool Congress
The All India Trinamool Congress (English: All India Grassroots Congress; AITC), colloquially the Trinamool Congress ( TMC) is an Indian political party which is predominantly active in West Bengal. The party is led by Mamata Banerjee, the cur ...
said that he is disappointed at a personal level and this is not expected in the liberal world we live in today.
Legislative action
On 18 December 2015,
Lok Sabha
The Lok Sabha, constitutionally the House of the People, is the lower house of India's bicameral Parliament, with the upper house being the Rajya Sabha. Members of the Lok Sabha are elected by an adult universal suffrage and a first-past ...
member
Shashi Tharoor
Shashi Tharoor (; ; born 9 March 1956 in London, England ) is an Indian former international civil servant, diplomat, bureaucrat and politician, writer and public intellectual who has been serving as Member of Parliament for Thiruvananthapuram, ...
of the
Indian National Congress
The Indian National Congress (INC), colloquially the Congress Party but often simply the Congress, is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Em ...
introduced a
private member's bill
A private member's bill is a bill (proposed law) introduced into a legislature by a legislator who is not acting on behalf of the executive branch. The designation "private member's bill" is used in most Westminster system jurisdictions, in whi ...
to replace Section 377 in the
Indian Penal Code
The Indian Penal Code (IPC) is the official criminal code of India. It is a comprehensive code intended to cover all substantive aspects of criminal law. The code was drafted on the recommendations of first law commission of India established in ...
and decriminalize consensual same-sex relations. The bill was defeated in first reading, 71–24.
For his part, Tharoor expressed surprise at the bill's rejection at this early stage. He said that he did not have time to rally support and that he will attempt to reintroduce the bill.
In March 2016, Tharoor tried to reintroduce the private member's bill to decriminalize
homosexuality
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to peop ...
but was voted down for the second time.
Judiciary action
2009 Naz Foundation V. Govt. of NCT of Delhi
The movement to repeal Section 377 was initiated by
AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication ''Less than Gay: A Citizen's Report'', spelt out the problems with 377 and asked for its repeal
A 1996 article in Economic and Political Weekly by Vimal Balasubrahmanyan titled 'Gay Rights In India'chronicles this early history. As the case prolonged over the years, it was revived in the next decade, led by the
Naz Foundation (India) Trust
The Naz Foundation (India) Trust is a non-governmental organisation (NGO) in that country that works on HIV/AIDS and sexual health. It is based in the Indian capital of New Delhi.
It is a Delhi-based organization that has been at the forefron ...
, an activist group, which filed a
public interest litigation The chief instrument through which judicial activism has flourished in India is public interest litigation (PIL) or social action litigation (SAL). ''Public interest litigation'' (PIL) refers to litigation undertaken to secure public interest and de ...
in the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
in 2001, seeking the legalisation of homosexual intercourse between consenting adults.
The
Naz Foundation worked with a legal team from the
Lawyers Collective
Lawyers Collective is a non-governmental organization in India which promotes human rights, especially on issues relating to women's rights, HIV, tobacco, LGBT and parliamentary corruption in India. On 1 June 2016, Govt of India suspended the F ...
to engage in court. In 2003, the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
refused to consider a petition regarding the legality of the law, saying that the petitioners, had no ''
locus standi
Locus (plural loci) is Latin for "place". It may refer to:
Entertainment
* Locus (comics), a Marvel Comics mutant villainess, a member of the Mutant Liberation Front
* ''Locus'' (magazine), science fiction and fantasy magazine
** ''Locus Award' ...
'' in the matter. Since nobody had been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
in the absence of a petitioner with standing.
Naz Foundation appealed to the Supreme Court against the decision of the
High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.
There was support from others like Sunil Mehra, a notable journalist. He was in a committed relationship with
Navtej Singh Johar
Navtej Singh Johar (born 8 August 1959) is an Indian Sangeet Natak Akademi award-winning Bharatnatyam exponent and choreographer. He is also an LGBTQ activist.
Life and career
Johar is faculty at Ashoka University, Sonipat. He is trained in B ...
and drew from his personal experiences while protesting.
Ritu Dalmia
Ritu Dalmia (born 1973) is an Indian celebrity chef and restaurateur. She is the chef and co-owner of the popular Italian restaurant Diva in Delhi, which she established in 2000, with co-founder Gita Bhalla under partnership firm "Riga Food". O ...
also demonstrated keen activism.
Aman Nath
Aman Nath (born 1951) is an Indian writer, hotelier, and architectural restorer. He is the co-founder and co-chairman of the Neemrana Hotels chain, along with Francis Wacziarg. Both are today credited for pioneering the heritage hotels movemen ...
, a writer, historian, and hotelier, also fought for the decriminalisation of Section 377. He had a relationship with Francis Wacziarg for 23 years until Wacziarg passed away. Ayesha Kapur became successful within a decade of working in a nascent e-commerce sector. However, she left her job because she was afraid of people finding out about her sexuality. Over time, she gained the coulegalizingme out and challenge Section 377.
In May 2008, the case came up for hearing in the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
, but the Government was undecided on its position, with The
Ministry of Home Affairs
An interior ministry (sometimes called a ministry of internal affairs or ministry of home affairs) is a government department that is responsible for internal affairs.
Lists of current ministries of internal affairs
Named "ministry"
* Ministry ...
maintaining a contradictory position to that of the Ministry of Health on the issue of enforcement of Section 377 with respect to
homosexuality
Homosexuality is romantic attraction, sexual attraction, or sexual behavior between members of the same sex or gender. As a sexual orientation, homosexuality is "an enduring pattern of emotional, romantic, and/or sexual attractions" to peop ...
. On 7 November 2008, the seven-year-old petition finished hearings. The Indian Health Ministry supported this petition, while the Home Ministry opposed such a move. On 12 June 2009, India's new law minister
Veerappa Moily
Marpadi Veerappa Moily (born 12 January 1940) is an Indian politician belonging to the Indian National Congress from the state of Karnataka.
Moily was the former Chief Minister (and the first ethnic Tuluva CM) of the Indian state of Karnataka ...
agreed that Section 377 might be outdated.
Eventually, in a historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section,
legalising consensual homosexual activities between adults.
The essence of the section goes against the fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgement, a bench of Chief Justice
Ajit Prakash Shah
Ajit Prakash Shah (born 13 February 1948 at Solapur) is the former Chairman of the 20th Law Commission of India. He was the Chief Justice of Delhi High Court from May 2008 till his retirement in February 2010.
Justice Shah did his graduation fr ...
and Justice
S. Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.
The two-judge bench went on to hold that:
The court stated that the judgement would hold until Parliament chose to amend the law. However, the judgement keeps intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors.
A batch of appeals were filed with the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
, challenging the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
judgment. On 27 March 2012, the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
reserved verdict on these.
After initially opposing the judgement, the
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
G. E. Vahanvati
Goolamhussein Essaji Vahanvati was an Indian senior counsel who served as the 11th Attorney General for India. His first term in office began in June 2009 and was for three years.
Early life
Goolam was born to Essaji Vahanvati, a lawyer, in a ...
decided not to file any appeal against the
Delhi High Court
The High Court of Delhi (IAST: ''dillī uchcha nyāyālaya'') was established on 31 October 1966, through the ''Delhi High Court Act, 1966'', with four judges, Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. ...
's verdict, stating, "insofar as
ection 377 of the Indian Penal Codecriminalises consensual sexual acts of adults in private
efore it was struck down by the High Courtwas imposed upon Indian society due to the moral views of the British rulers."
2013 Suresh Kumar Koushal v. Naz Foundation
Suresh Kumar Koushal and another v. NAZ Foundation and others is a 2013 case in which a two-judge
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
bench consisting of
G. S. Singhvi
G.S. Singhvi (born 12 December 1948) is a retired judge of the Supreme Court of India. He retired on 11 December 2013.
Early life and education
Singhvi was born at Jodhpur, Rajasthan on 12 December 1948. He graduated in 1968 from Jodhpur Un ...
and
S. J. Mukhopadhaya overturned the Delhi High Court case ''
Naz Foundation v. Govt. of NCT of Delhi
Naz Foundation v. Govt. of NCT of Delhi (2009) is a landmark Indian case decided by a two-judge bench of the Delhi High Court, which held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights prote ...
'' and reinstated Section 377 of the Indian Penal Code.
This ruling was despite the urging of a group of mental health professionals who filed a collection of written submissions to the Supreme court with commentary on the case grounded in their expert opinion The mental health professionals noted that they frequently see LGBT or queer clients who suffer significant psychological distress—depression, anxiety, and more—due to the threat and social censure posed by IPC 377. These mental health professionals argued that IPC 377 causes LGBT and queer individuals to feel that they are "criminals," and that this status is a significant part of their psychological distress.
The United Nations human rights chief Navi Pillay voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it “a significant step backwards” for the country. In the wake of
Indian Supreme Court
The Supreme Court of India ( IAST: ) is the supreme judicial authority of India and is the highest court of the Republic of India under the constitution. It is the most senior constitutional court, has the final decision in all legal matters ...
's ruling that gay sex is illegal, UN chief
Ban Ki-moon
Ban Ki-moon (; ; born 13 June 1944) is a South Korean politician and diplomat who served as the eighth secretary-general of the United Nations between 2007 and 2016. Prior to his appointment as secretary-general, Ban was his country's Minister ...
stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals.
Soon after the judgement,
Sonia Gandhi
Sonia Gandhi ('' née'' Maino; born 9 December 1946) is an Indian politician. She is the longest serving president of the Indian National Congress, a social democratic political party, which has governed India for most of its post-independ ...
, President of the then ruling
Congress party
The Indian National Congress (INC), colloquially the Congress Party but often simply the Congress, is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Em ...
, asked Parliament to do away with section 377. Her son and Congress Party vice-President,
Rahul Gandhi
Rahul Gandhi ( ; born 19 June 1970) is an Indian politician and a member of the Indian Parliament, representing the constituency of Wayanad, Kerala in the 17th Lok Sabha. A member of the Indian National Congress, he served as the president of ...
also wanted section-377 to go and supported gay rights. In July 2014, Minister of State for Home Kiren Rijiju in the
BJP
The Bharatiya Janata Party (BJP; ; ) is a political party in India, and one of the two major Indian political parties alongside the Indian National Congress. Since 2014, it has been the ruling political party in India under Narendra Modi ...
led
Central government
A central government is the government that is a controlling power over a unitary state. Another distinct but sovereign political entity is a federal government, which may have distinct powers at various levels of government, authorized or dele ...
told the Lok Sabha in a written reply that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court. However, on 13 January 2015, BJP spokesperson Shaina NC, appearing on NDTV, stated, "We
JPare for decriminalizing homosexuality. That is the progressive way forward."
2016 Naz Foundation Curative Petition
On 2 February 2016, the final hearing of the curative petition submitted by the
Naz Foundation and others came for hearing in the
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
. The three-member bench headed by the
Chief Justice of India
The chief justice of India (IAST: ) is the chief judge of the Supreme Court of India as well as the highest-ranking officer of the Indian Judiciary. The Constitution of India grants power to the president of India to appoint, in consultation w ...
T. S. Thakur
Tirath Singh Thakur (born 4 January 1952) is an Indian jurist who served as the 43rd Chief Justice of India (CJI) from 3 December 2015 to 4 January 2017. Before being elevated to the Supreme Court, he served as the Chief Justice of Punjab an ...
said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.
Right to Privacy verdict
On 24 August 2017, the Supreme Court of India gave the
Right to Privacy verdict
Justice K. S. Puttaswamy () vs Union Of India (2017), also known as Right to Privacy verdict is a landmark decision of the Supreme Court of India, which holds that the right to privacy is protected as a fundamental right under Articles 14 ...
. In the case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. The Supreme court held that the Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian Constitution. The judgement mentioned Section 377 as a "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy." In the judgement delivered by the 9-judge bench,
Justice Chandrachud (who authored for Justices
Khehar,
Agarwal
Agrawal (anglicised as Agarwal, Agerwal, Agrawala, Agarwala, Agarwalla, Aggarwal, Agarawal, Agarawala) is a Bania community found throughout northern, central and western India, mainly in the states of Rajasthan, Haryana, Punjab, Chandigarh, Hi ...
,
Abdul Nazeer and himself), held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect, and the judges clearly expressed their disagreement with it.
Justice Kaul agreed with Justice Chandrachud's view that the right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. He further went on to state that the majoritarian concept does not apply to Constitutional rights and the courts are often called upon to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the
Constitution of India
The Constitution of India (IAST: ) is the supreme law of India. The document lays down the framework that demarcates fundamental political code, structure, procedures, powers, and duties of government institutions and sets out fundamental ri ...
.
Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
...Their rights are not "so-called" but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.
However, as the curative petition (challenging Section 377) is currently sub-judice, the judges authored that they would leave the constitutional validity to be decided in an appropriate proceeding. Many legal experts have suggested that with this judgement, the judges have invalidated the reasoning behind the 2013 Judgement, thus laying the ground-work for Section 377 to be read down and the restoration of the 2009 Judgement of the
High Court, thereby decriminalizing
homosexual sex.
2018 Navtej Singh Johar v. Union of India
In 2018, after decades of
grassroots
A grassroots movement is one that uses the people in a given district, region or community as the basis for a political or economic movement. Grassroots movements and organizations use collective action from the local level to effect change at t ...
activism, the application of
section 377 of the Indian Penal Code
Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. The penal code remains in many former col ...
to private consensual sex between men was ruled unconstitutional by India's
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
, effectively
decriminalizing
Decriminalization or decriminalisation is the reclassification in law relating to certain acts or aspects of such to the effect that they are no longer considered a crime, including the removal of criminal penalties in relation to them. This reform ...
homosexual activity.
The five-judge constitutional bench of the Supreme Court consisting of chief justice
Dipak Misra
Justice Dipak Misra (born 3 October 1953) is an Indian jurist who served as the 45th Chief Justice of India from 28 August 2017 till 2 October 2018. He is also former Chief Justice of the Patna High Court and Delhi High Court. He is the nephe ...
and justices Dhananjaya Y. Chandrachud, Ajay Manikrao Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman started hearing the challenge to constitutionality of Section 377. The
Union Government
The Government of India (ISO: ; often abbreviated as GoI), known as the Union Government or Central Government but often simply as the Centre, is the national government of the Republic of India, a federal democracy located in South Asia, c ...
did not take a position on the issue and left it to the "wisdom of the court" to decide on Section 377. The petitioners invoked the right to sexual privacy, dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. After hearing the petitioners' plea for four days, the court reserved its verdict on 17 July 2018. The bench pronounced its verdict on 6 September 2018. Announcing the verdict, the court reversed its own 2013 judgement of restoring Section 377 by stating that using the section of the
IPC to victimize homosexuals was unconstitutional, and henceforth, a criminal act. In its ruling, the Supreme Court stated that consensual sexual acts between adults cannot be a crime, deeming the prior law "irrational, arbitrary and incomprehensible."
''The Wire'' drew parallels between the supreme court's judgement and
Privy Council
A privy council is a body that advises the head of state of a state, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the mon ...
’s 1929 verdict in ''
Edwards vs Canada (AG)'' that allowed for Women to sit in the
Senate of Canada
The Senate of Canada (french: region=CA, Sénat du Canada) is the upper house of the Parliament of Canada. Together with the Crown and the House of Commons, they comprise the bicameral legislature of Canada.
The Senate is modelled after the B ...
. It compared the petitioners to the Canadian
''Famous Five''.
Documentary
In 2011, Italian film maker Adele Tulli, made ''365 Without 377'' which followed the landmarking ruling in 2009, and the Indian LGBTQ community in
Bombay
Mumbai (, ; also known as Bombay — the official name until 1995) is the capital city of the Indian state of Maharashtra and the ''de facto'' financial centre of India. According to the United Nations, as of 2018, Mumbai is the second- ...
celebrations. It won the
Turin
Turin ( , Piedmontese language, Piedmontese: ; it, Torino ) is a city and an important business and cultural centre in Northern Italy. It is the capital city of Piedmont and of the Metropolitan City of Turin, and was the first Italian capital ...
LGBT Film Fest award in 2011.
Singapore
Section 377A of the Singapore Penal Code criminalized sex between men, until its full repeal on 29 November 2022.
Prime Minister
Lee Hsien Loong
Lee Hsien Loong (; born 10 February 1952) is a Singaporean politician and former brigadier-general who has been serving as Prime Minister of Singapore and Secretary-General of the People's Action Party since 2004. He has been the Member of Par ...
had announced in August 2022 that the provision would be repealed.
See also
*
LGBT rights in India
; ne, हिजडा; Marathi: हिजडा). In Telugu, they are referred to as ( నపుంసకుడు) or (హిజ్రా), in Urdu as ( ہیجڑا), in Gujarati as (પાવૈયા) or ( હીજડા), in Tamil a ...
*
Article 365 of the Sri Lankan Penal Code
Article 365 of the Sri Lankan Penal Code criminalizes " carnal intercourse against the order of nature" and provides for a penalty of up to ten years in prison.
The 135-year-old British law criminalizing homosexual acts remains on the books; ho ...
*
Sodomy law
*
LGBT rights in the Commonwealth of Nations
The majority of the countries of the Commonwealth of Nations, formerly known as the British Commonwealth, still criminalise sexual acts between consenting adults of the same sex and other forms of sexual orientation, gender identity and expressio ...
References
Further reading
*
*
External links
Male-to-male sex, and sexuality minorities in South Asia: an analysis of the politico-legal framework Arvind Narrain & Brototi Dutta, 2006.
Section 377Indian Penal Code, 1860(Mobile)
{{LGBT in India
British Empire
Criminalization of homosexuality
Legal history
History of colonialism