Section 377 and its evolution

Section 377 and its evolution

By Bhagya Subhash 

The Indian Penal Code deals with various offences and one such offence is Unnatural Offences, which is basically having intercourse against the order of nature. Here, the definition of 'against the order' has changed with years. When the penal code was drafted it included, intercourse with same sex as well as with animals. The evolution over the years have led to decriminalisation of intercourse with same sex. In a landmark judgement the Supreme Court of India, in Navtej Singh Johar v. Union of India[1], a five-judge bench unanimously declared intercourse of consenting adults with same sex as legitimate. 

HISTORY 

In India, historically homosexuality was prevalent. There exist sufficient documentary evidences to suggest that same sex was dignified and revered by attributing similar traits to religious deities. The homoerotic cravings on the Hindu temples of Khajuraho in Madhya Pradesh and Konark Temple in Odisha are evidences of the active status of homosexuality. The ancient Indian text Kama Sutra written by Vātsyāyana dedicates a complete chapter on erotic homosexual behaviour[2]. The Arthashastra of Kautilya, imposes a duty on the King to punish those involved in homosexual activities implying that it was considered a crime in that period. 

THE FIGHT 

A landmark petition in 2001 by Naz Foundation, in Delhi High Court challenging the constitutionality of the aforementioned section brought this issue mainstream attention. In 2009, Delhi High Court ‘decriminalised consensual sex of adults of the same sex in private’ on grounds that it is violative of fundamental rights guaranteed in constitution.  

Later, in 2013 in an appeal filed against the Delhi High Court judgement in Suresh Kumar Koushal v Naz Foundation[3], the Supreme Court overturned the judgement saying it was "legally unsustainable" and upheld the Indian Penal Code to penalise sex with same gender. The court also said that it was up to Parliament to consider scrapping laws. As per which, Congress MP Shashi Tharoor introduced Private Member’s Bill, but the Lok Sabha voted against of it. In the meantime, several curative petitions were filed against the Supreme Court judgement.  

Concurrently, a fresh petition was filed to partially scrap Section 377 of IPC by five individuals. The Supreme Court on January 5, 2018, formed a constitution bench for hearing the challenge to Section 377 in a comprehensive manner, even though the curative petiton were pending before the Court.  

The Supreme Court’s heroic judgement in Puttuswami v. Union of India, declaring ‘Right to Privacy’ as a Fundamental Right, which highly influenced the petitioners in their fight to grant a legal status to LGBT community. The 5-judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra heard the matter from July 10th, 2018. On 6th September, 2018 the five-judge bench in Navtej Singh Johar v. Union of India, partially struck down Section 377 of the Indian Penal Code, upholding the petition, decriminalised same-sex relations between consenting adults. And thus, finally receiving the freedom they wished for since years.  

COMPARING THE SCENARIO 

Apparently, it's still illegal to be LGBT+ in 70 countries, and you could be given the death penalty in 12 countries. The International Lesbian, Gay, Bisexual, Trans and Intersex Association’s research shows that only 65% of those living in UN countries around the world can now be, legally, in consensual same-sex relationships.[4] Most Middle Eastern countries impose heavy punishments to those who recognise themselves from LGBT community. 

CONCLUSION 

Although, India was late to provide the recognition the LGBT community deserved, but as it is said ‘better late than never’. However, way before legalisation they were largely welcomed amongst the youngsters of our nation. And such judgements make us hopeful for a better tomorrow with evolving laws as per the needs and requirements of the people.  

[1] WP (Crl.) 76/2016; WP (C) 572/2016 

[2] Indian Penal Code by K D. Gaur, p.1113  

[3] AIR 2014 SC 563  

[4] https://www.forbes.com/sites/jamiewareham/2020/05/17/map-shows-where-its-illegal-to-be-gay--30-years-since-who-declassified-homosexuality-as-disease/#4e90d252578a 

[5]https://www.businessinsider.in/thumb/msid66309311,width-640,resizemode-4,imgsize-226598/Religion-is-an-un-ignorable-factor-in-the-maps-While-the-majority-of-the-world-has-legalized-homosexuality-the-countries-where-it-is-still-outlawed-are-concentrated-in-the-Middle-East-Southeast-Asia-and-Africa-areas-with-majority-Muslim-nations-.jpg 

image source- Google.com