Section 377 of the Indian Penal Code refers to the colonial era legislation pertaining to "Unnatural offenses" and serves as a law that criminalises sexual activities "against the law of nature". Considered as an archaic and regressive legislation, activist and members of the LGBT community have been fighting to strike down this anti-homosexuality legislation in courts ever since 2001.
In January 2017, the Supreme Court's five-member bench decided to hear petitions to strike down Section 377 in a revisiting of its 2013 verdict of criminalising homosexuality through an upholding of Section 377. The five-member bench led by Chief Justice Dipak Misra commenced the hearing on 10 July 2018.
Section 377 of the IPC reads, " 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." While the law doesn't explicitly refer to LGBT, the very mentioning of "against the order of nature" has come to be referred for same-gender sexual relations.
Simply put, no. While the assumption is that Section 377 impacts only homosexuals, the law also allows the state to interfere on matters of heterosexual consensual sex as well. Given the fact that the implications of "against the law of nature" in the Act include consensual sexual acts of oral and anal sex in private, the Section empowers the state to make private consensual acts between heterosexuals unlawful.
The fulcrum of the argument for anti-Section 377 activists is based upon the constitutionally enshrined principles of fundamental rights, equality and privacy.
In previous petitions, activists have prayed to the top court to “declare the “Right to Sexuality,” “Right to Sexual Autonomy” and the “Right to Choice of a Sexual Partner” to be part of the Right to Life guaranteed under Article 21 of the Constitution of India”. They have also prayed to the top court to “Declare Section 377 of the Indian Penal Code, 1860 to be unconstitutional”.
Activists against Section 377 argue that the law is against teh Indian Constitution. While the matter is presently being heard in the Supreme Court of India, the argument to strike the law down is based upon multiple sections of the Indian Constitution.
Article 5 of the constitution states that every person who “was born in the territory of India” shall be a citizen of India, the core argument of LGBT activists is about why their sexual orientation and choice of partner should make them outside the purview of fundamental rights which include Article 14 that states the “state shall not deny to ANY person equality before the law”. Therefore, the argument to strike it down is based upon the fact that the Indian state and Indian law is bound by the Indian constitution to not discriminate on the basis of gender.
The fundamental right under Article 15, which places a “prohibition of discrimination” on the grounds of sex also adds weight to the argument that Section 377 is against the tenets of the Indian Constitution. Additionally, Article 21 of the Indian constitution which says “NO PERSON shall be deprived of his personal life or liberty” also pours into the narrative that a legislative agenda that targets homosexuals for what they do in their private lives may against what the Indian Constitution envisions.
The environment surrounding which IPC Section 377 was born was 158 years ago in 1860 which itself speaks about the anachronism it has become in present times.
While the British-era law was kept in the IPC even after independence, no political party has shown the boldness to move to strike it down and the only reasons could be based upon 'political' compulsions and losing out on a particular votebank.
While the Congress has off-late been advocating for the striking down of Section 377, it is a matter of record that across the political and ideological spectrum politicians have refused to slice down the anti-LGBT law. During UPA I, the Centre sought more time to take a stand, but then the Dr. Manmohan Singh's government said that "gay sex" is immoral vis-a-vis its arguments in court. At the time, the High Court in October 2008 pulled up the Centre for making a religion-based argument instead of a scientific one.
The BJP, though, is yet to make its stand on the matter official. While there have been stray utterances by individuals, the Modi government has maintained a stoney silence on their official position on the matter.
In February 2017, Jaitley spoke in support of abolishing Section 377 and said, "Supreme Court should not have reversed the Delhi High Court order which de-criminalised consensual sex between gay adults". However, contrastingly, then BJP President Rajnath singh in December 2013 months ahead of coming into power was quoted as to have said, “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”
The matter is presently in Supreme Court, which has constituted a five member bench to hear a reconsideration of its December 2013 verdict that upheld the law. In fact, the three judge bench which decided on a larger bench to reconsider the validity of Section 377, while making its decision said, "Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench".
The anti- Section 377 movement gathered some steam in August 2017 when the Supreme Court upheld Right to Privacy as a fundamental rights for all Indians.
The SC in the right to privacy verdict last year gave a boost to the possible decriminalisation of section 377 and said “ Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. ”
On 8 January 2018, the Supreme Court then referred Section 377 to a larger bench of the court putting on record that its 2013 decision requires reconsideration.
In July 2009: The Delhi HC decriminalised homosexuality and held it as a violation of Article 14, 15 and 21 of the Constitution of India. “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21,14,and 15 of the Constitution,” a Bench comprising then Chief Justice A P Shah and Justice S Murlidhar had said.
In December 2012: The Supreme Court set aside the Delhi High Court order saying a “miniscule fraction of the country’s population constitute LGBT.”
In January 2018: The top court vis-a-vis a petition filed in 2016 decided to refer the matter to a larger constitutional bench.
In July 2018: The Supreme Court of India begins hearing on the petitions to strike down Section 377. In the case, there are as many as 35 individual petitioners who have come forward. Controversially, on the eve of the commencement of hearing, the Modi government had sought more time to make their stand clear but the five member bench led by CJI Dipak Misra refused to delay by saying that it was long pending. "We will go ahead with the scheduled hearing. We will not adjourn it. You file whatever you want during the hearing", the CJI said.