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Home All India Section 377: All You Need To Know
All India Edited by Richa Taneja Updated: January 08, 2018 5:19 pm IST
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Section 377 of the Indian Penal Code criminalises sexual activities "against the law of nature".
The Supreme Court today said that a larger group of judges would re-consider and examine the constitutional validity of Section 377 of the Indian Penal Code (IPC), a law that criminalises sexual activities "against the law of nature", re-opening the debate over homosexuality in India. The top court will now re-visit its 2013 verdict that criminalises gay sex. Deciding on a petition by five persons who say they are living in fear of being prosecuted, the top court said, "The section of people who exercise their choice should never remain in a state of fear." A three-judge bench of Supreme Court headed by the Chief Justice of India, Dipak Misra 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."
Section 377 of the Indian Penal Code states, "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." Simply put, Section 377 is an archaic law that was introduced during the British era in 1860s and makes gay sex a crime for which the punishment can be a life term. This also has implications for heterosexuals, as consensual sexual acts of adults - oral and anal sex in private - are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.
In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. Religious groups, however, had appealed against the decision in the Supreme Court.
In 2013, the Supreme Court cancelled the Delhi high court order and re-criminalised homosexuality. It said that it was the job of the parliament to decide on scrapping laws.
The decision that gay sex is a criminal offense was seen as a major setback for human rights and was also widely criticized. While prosecutions under section 377 have been rare, activists have said that the police used the law to harass and intimidate members of the LGBT community.
After the 2013 Supreme Court's decision, prominent BJP leader Rajnath Singh had said, "We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported." On the contrary, senior BJP leader Arun Jaitley had said, "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."
Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leader Derek O' Brien, CPI (M) leader Brinda Karat, the Aam Aadmi Party among others had come out in support of the LGBT community and had said that homosexuality should be decriminalized.
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From Wikipedia, the free encyclopedia
Law criminalizing homosexuality in former British colonies

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British colonies ( Section 377 , 1860–)
Singapore ( Section 377A , 1938–)
Uganda (1894–)

India ( Section 377 , 1861–)
Sri Lanka ( Article 365 , 1883–)
United States

Australia (1975/1997)
Brazil (1533–1830)
Canada (?– 1969 )
Cyprus ( Section 171 , 1929–1998)
Germany ( Paragraph 175 , 1871–1969/1994)
New Zealand (1840– 1986 )
Norway ( Section 213 , ?–1972)
Romania ( Article 200 , 1968–1996/2001)
Russia (1832–1917, 1933–1993)
South Africa ( Section 20A , –2007)
United Kingdom ( 1533 – 1967 / 1982 )

120B (criminal conspiracy)
121 (waging war against India)
122 ( mutiny )
194 (false evidence to procure conviction for a capital offence)
302, 303 (murder)
305 (abetting suicide)
364A (kidnapping for ransom)
364A (banditry with murder)
376A (rape)

1
2
3
4
5
20
124A ( sedition )
153A (hate speech)
294 (obscenity)
295A (blasphemy)
299 ( culpable homicide )
304 (culpable homicide not amounting to murder)
320 (grievous hurt)
326A ( acid attack )
326B (attempted acid attack)
377 (unnatural offences)
420

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 colonies and has been used to criminalize third gender people, such as the apwint in Myanmar . [1] In 2018, British Prime Minister Theresa May acknowledged how the legacies of British colonial anti-sodomy laws continue to persist today in the form of discrimination, violence, and death. [2]

Although the act of sodomy was sometimes prosecuted in England under British common law , it was first codified in the British empire as Section 377 in the Indian Penal Code 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). [2] Alok Gupta wrote for a Human Rights Watch report in 2008 that the British intended for the code to prevent Christian colonial subjects from " corruption " and condition colonized subjects undergoing Christianization to conform to colonial authority. [3]

Although Section 377 did not explicitly include the word homosexual , it has been used to prosecute homosexual activity. The provision was introduced by authorities in the Raj in 1862 as Section 377 of the Indian Penal Code and functioned as the legal impetus behind the criminalization of what was referred to as, "unnatural offenses" throughout the various colonies, in several cases with the same section number. [4] [5] [1]

Although most colonies have since gained independence through statehood since Section 377 was implemented, it remains in the penal codes of the following countries:

Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1861 during the British rule of India . 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 ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, "irrational, indefensible and manifestly arbitrary", [9] but that Section 377 remains in force relating to sex with minors , non-consensual sexual acts, and bestiality . [10]

Portions of the section were first struck down as unconstitutional with respect to gay sex by the Delhi High Court in July 2009. [11] [12] [13] That judgement was overturned by the Supreme Court of India (SC) on 11 December 2013 in Suresh Kumar Koushal vs. Naz Foundation . The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. [14] [15] 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. [16]

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 condem
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