Homosexuality - a crime or not? Supreme Court verdict on Section 377 today

The Supreme Court on Thursday (September 6) will pronounce a crucial verdict on Article 377 - a controversial provision in the Indian Penal Code (IPC), that states homosexuality and consensual gay sex a punishable offence in India.

During the hearing, the Supreme Court had observed that "societal morality changes from age to age and no one should live in fear due to their sexuality."

A bench headed by Chief Justice Dipak Misra had asked a larger bench to review the constitutionality of Section 377, a British-era law that criminalises consensual sexual activities "against the order of nature".

The SC washearing a bunch pleas challenging Section 377 filed by prominent petitioners. They argued that they were living in fear of being punished due to the “discriminatory law”.

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The apex court had also pointed out that "choice can't be allowed to cross the boundaries of law but the confines of law can't trample or curtail the inherent right embedded in an individual under Article 21, the right to life and liberty."

What is Article 377?  All about the law that makes homosexuality a criminal offence

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.

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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 various 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.

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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.”