Section 377: All about the law that makes homosexuality a criminal offence

The Supreme Court on Tuesday commenced a crucial hearing on a batch of please challenging Section 377 of the Indian Penal Code (IPC) that makes homosexuality and gay sex a criminal offence.

Despite Centre’s plea seeking to defer the hearing on Section 377 or the gay sex law, a five-judge constitution bench headed by Chief Justice Dipak Misra and comprising justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra began hearing the petitions challenging the 150-year-old law.

Section 377 of the IPC refers to ‘unnatural offences’ and makes carnal intercourse “against the order of nature” with any man, woman or animal, a punishable offence. Those found guilty of violating the law shall be punished with imprisonment for life or up to 10 years and a fine.

As the apex court hears the petitions challenging Section 377, a look back at the history of the timeline of the case.

Introduction of Section 377

Section 377 which makes homosexuality a criminal offence was first introduced by British India in 1861 and was modelled on Buggery (anal intercourse) Act of 1533. Section 377 of the act was drafted by Thomas Macaulay in 1938 but was brought into effect after 22 years in 1860. The act described buggery as a criminal offence against the will of god. The act made anal penetration, bestiality and homosexuality a crime.

Naz Foundation’s challenge to Section 377

In 2001, Naz Foundation, an NGO which provides a variety of services to gays, lesbians, transgenders, filed a petition against the Section 377 before the Delhi High Court. The NGA had challenged the constitutionality of Section 377. The NGA had sought the court’s order to allow consensual homosexual relations between two adults.

Delhi High Court rejects Naz Foundation’s plea

In 2003, the Delhi High Court had rejected the plea filed by Naz foundation challenging the constitutionality of Section 377. The court had said that the NGO had no standing in the matter. The NGO, however, moved to the Supreme Court in 2006 against the Delhi’s High Court’s verdict. The apex court then directed the high court to reconsider the plea.

Delhi High Court decriminalises homosexuality

In a historic judgment, the Delhi High Court in 2009 decriminalised homosexuality among consenting adults. The court, in its landmark judgment, had said that Section 377 was “illegal” and “unconstitutional” and violated Article 14, 15 and 21 of the Constitution of India.

Supreme Court reverses Delhi High Court order

The landmark verdict of Delhi Court didn’t go down well with a section of our society and various petitions were filed before the Supreme Court, challenging the former’s authority to change a law. The Supreme Court, however, reversed the high court’s order and homosexuality again became a punishable offence in India. The apex court found HC’s order “legally unsustainable” and said that the court had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBT.”

A batch of petitions filed in SC seeking re-examination of its original verdict

In 2016, a bunch pleas were filed in the Supreme Court seeking re-examination of its 2012 verdict that overturned Delhi High Court’s judgment to decriminalise homosexuality. The petitioners claimed that Section 377 was violating their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution.”