This article has been written by Namrata Kandankovi, student of Symbiosis Law School, Pune. The author of the article has discussed the concept of section 377, its implication in India, the court’s verdict on section 377 and the stance of various public figures regarding the same.

What is section 377?

Section 377 of Indian Penal Code is a 157-year old colonial law which criminalised homosexuality in India. The section was introduced in the year 1864 while India was under British Colonial rule. The wrongs committed in relation to section 377 came under the ambit of ‘Unnatural Offences’. Section 377 stated- whoever has voluntary carnal intercourse with a man, woman or an animal and which goes against the order of nature will be liable under for a criminal offence under section 377 of IPC.

The punishment for the commission of this offence varies from imprisonment for a period of 10 years or maybe imprisonment for life or the offender may be made liable to pay fine for the commission of the said offence under section 377 of IPC. This particular statute criminalised all carnal and oral sex and the community which came to be largely affected by the implications of this rule was the one of same-sex relations. Further, various human rights groups have claimed that the police have used this section in various instances to abuse and harass the members of the LGBT community.

How did it come about?

It can be stated that it has indeed been a tormenting and agonies route for all those campaigning for the restoration of the rights of the LGBT community. The very inception of the battle for recognition of rights of LGBT community started in the year 2001, it was a battle between the government and the court and this saga further continued till the year 2009. It was finally in the year 2009 that the Delhi High Court ruled in favour of decriminalising homosexuality and this led to the scrapping of the then existing law, in the case Naz Foundation v. Government of Delhi NCT of India. The court in its judgment had held that section 377 of IPC stood against the rights enshrined by the constitution towards its citizens under article 14, 15 and 21 of the constitution of India.

The verdict given out by the Delhi High Court was welcomed by various human right groups and it was upheld by them and was considered to be ‘progressive’ as it was in line with the changing notions of the society and moreover, it brought an end to the 8-year old battle for the gay-rights activists. But, as and how the events unfolded after the judgment being rolled out by the Delhi High Court, numerous social, religious and political groups backed by political power expressed their contentions which were against the ruling of the Delhi High Court and supporting their claim on the basis, that homosexuality goes against the norms and culture of Indian Ethics and hence should be struck down. Following all these developments the Supreme Court of India struck down the previous ruling of the Delhi High Court and further made the homosexuality a criminal offence.

It was in June 2018 that the court considered revisiting the case followed by various petitions filed in the case, which included prominent figures like that of Navtej Singh Johar and 4 other high profile Indians which required a hearing by the court. Followed by this in July 2018, the five-judge constitution bench was hearing the case in which the petition was filed by Johar and 4 others. The complete onus was laid on the court to decide the validity of the case and the decision of the court would be considered to be final and it had complete rights to reverse the final verdict in the case.

It was finally on September 6, 2018 that the court unanimously came out with the verdict of scrapping the section 377 and in its contentions laid down that the section was irrational, arbitrary in its very nature and that it was indefensible. This act of the Supreme Court of India marked the end of the long-existing colonial law and marked a celebrated conclusion to the long struggle for justice.

The Long Struggle

The bench which gave out the verdict in the Navtej Singh Johar case was comprised of the then Chief Justice of India Deepak Misra, Justice D Y Chandrachud, Indu Malhotra, R M Khanwilkar and Rohinton Fali. While delivering the judgment in the case it was held by the  then Chief justice of India that section 377 criminalises unnatural sexual acts between consulting adults both homosexual and heterosexual and hence this is unconstitutional in its very being. Further that it is also violative of the right to equality which is given by the constitution.

The judgment was marked by a  struggle by people and activists from different walks of life and the unfolding of events for a period of 20 years can be put forth in the following way as under:

• November 1991– In this year a document was released by the AIDS Bhedbhav Virodhi Andolan ABVA, the document was a 70 page report which showcased all that was wrong and included under its ambit various instances of extortion, blackmailing and various other violence that the gay people had faced throughout the years and tried to drag the attention of people to the issues which usually go unnoticed. It gave out a call for the scrapping of the legislative intent which discriminated against the gays and called for bringing an end to section 377 of IPC.
• May 1994– This year saw the eruption of controversy when Kiran Bedi, who was the then inspector general of Tihar Jail, Delhi refused to provide condoms for the inmates in the jail and in support of her actions, she stated that it would encourage homosexuality and also accepted that the prisoners indulge in it. Following this, the ABVA filed a writ petition to make condoms available for the prisoners and strike down section 377 as it was unconstitutional, but the petition filed by ABVA was dismissed in the year 2001.
• December 2001– A Public Interest Litigation was filed by an NGO The Naz Foundation working with gay men. The PIL challenged the constitutional validity of section 377 and called for the scrapping of its legislation.
• September 2004– In this year the Delhi High Court dismissed the PIL filed by Naz Foundation on the ground that there was no cause of action in the case and further laid down that when it is a purely academic case it cannot be examined by the court. Following this, a review petition was filed by the Naz Foundation which was eventually dismissed by the court following the previous pattern.
• February 2006– This year witnessed some important landmark changes in the case, as a special leave petition was filed by the Naz Foundation and it tried to reinstate the fact that in the interest of public there needs to be a reviving of section 377. Followed by this, various NGOs across the nation came in support of the scrapping of section 377 and started working for it collectively. There were various voices raised in favour of the scrapping of section 377 and the issue gained momentum. In response to this, the Ministry of Home Affairs filed an affidavit against the decriminalisation of homosexuality.
• July 2009– This year witnessed the landmark judgment given by the Delhi High Court. The court constituting the bench of Chief Justice Ajit Prakash Shah and Justice S Muralidharan finally struck down section 377 of IPC as unconstitutional. Further laid down that the section was violative of right to equality, liberty and right to life as given by the constitution on every citizen. This celebrated judgment of Delhi High Court was short-lived as it was further challenged in the Supreme Court by a Delhi based astrologer Suresh Kumar Koushal.
• December 2013– As the case was now in the Supreme Court, the Supreme Court turned down the verdict and reversed it making homosexuality a criminal offence under the Indian Penal Code and further laid down that the decision made by the constitutional bench of the Delhi High Court was legally unsustainable and held that the section 377 does not suffer from the vice of unconstitutionality.
• June 2016– In this year, the renowned award winning Bharatnatyam dancer Navtej Singh Johar challenged section 377 of the Indian Penal Code in the Supreme Court of India by filing a writ petition against it. This aspect gained momentum as it was further joined by 4 other celebrated personalities which also included Ritu Dalmia and the hotelier Aman Nath.
• August 2017– Parallel to the fight against homosexuality, this year witnessed other significant developments like that of India’s biometric programme Aadhaar case. In this case, the mandatory issuing of a unique identification number to every citizen of India which included the iris scanning and thumb impression of every citizen was challenged to be a breach of privacy of the citizens and it was challenged in the case of Puttaswamy v. Union of India. The court while delivering the judgment laid down that ‘Sexual orientation being an essential attribute of privacy, it cannot be discriminated against an individual and this would further stand against the self-worth and dignity of an individual’.  
• April 2018– One of India’s top hoteliers Keshav Suri who identifies himself to be a gay joined the moment for a collective fight against the criminalisation of homosexuality.
• July 2018–  This year witnessed the discussion on the case of decriminalisation of homosexuality whereby the five-judge bench of the Supreme Court brought into discussion the issue of why section 377 was to be seen as a criminal offence and the supporters of the law came up with the contention that the spread of sexually transmitted diseases and vandalism of the social fabric of the Indian culture were the reasons for the existence of the law. The justices of the Supreme court, on the other hand, made encouraging comments like that quoted from Indu Malhotra- ‘It is not an aberration but a variation’.
• September 2018– It was on the day of 6th September 2018 that the Supreme Court of India delivered the landmark judgment which decriminalised homosexuality. The then Chief justice of India Deepak Misra while delivering the justice held that the law was arbitrary in its very nature, it was irrational and indefensible.

The article has under its ambit included the saga of events which unfolded through the passage of time and in the end resulted in the striking down of section 377 from the Indian Penal Code and making homosexuality legal.

The Landmark Judgment of Section 377

For the sake of better understanding of the judgment given out up the Supreme Court in the case of Navtej Singh Johar v. Union of India involving section 377 of Indian Penal Code. The court while delivering the judgment laid down the following aspects, the highlights of the judgment of the case-

• Section 377 of IPC is arbitrary and irrational and hence it is liable to be struck down partially to the extent to which it criminalises consensual sex between two adults.
• The court however laid down that a person indulging in any kind of sexual activity with that of animals will still be a criminal offence under section 377 of IPC.
• Sexual orientation being a biological phenomenon, any discrimination which solely made on this ground would be held to be violative of fundamental rights of the citizens.
• The LGBT community owns the same fundamental and human rights as others and shall not be discriminated in any way.
• It is the duty cast on the court to protect and uphold the dignity of each and every individual in the society, the right to live with dignity is a fundamental right granted to each and every citizen by the Indian Constitution.
• Section 377 of IPC was indeed used as a weapon to harass the members of the LGBT community and they were discriminated as against other citizens which would no longer continue to exist.

Stance of various people on the matter of homosexuality

With the fallout of the judgment of the case Navtej Singh Johar v. Union of India,  one end of the society witnessed the judgment being celebrated and welcomed by the LGBT community putting a final end to all their struggles and the discrimination faced by them throughout the years while on the other end there were people who expressed a view which was different from that of the LGBT community, the views put forth by some of the renowned personalities will be looked at.

Will not allow gay sex and adultery in Army- Bipin Rawat

Months after the ruling of the judgment on homosexuality by the Supreme Court, the army general held in one of the press conferences that he would not allow gay sex and adultery in the army. In support of this argument he further laid down that the army is conservative, the army is a family and he would not allow gay sex and adultery to penetrate through it. In addition, adultery is defined as ‘stealing the affection of a brother officer’s wife’. Hence, taking all these aspects into account it can be said that getting the army under the sphere of gay sex and adultery would further complete things for them.

Suresh Kumar Kaushal

In the year 2013, when the Supreme Court’s verdict on re-criminalising gay sex was given effect, Suresh Kumar Kaushal was considered to be the face of such a development. The revised verdict of the court which came out in December 2013 was seen as a severe blow on the LGBTQ community.

After the Delhi High Court came out with the judgment of decriminalising homosexuality in 2009, Suresh Kumar Kaushal mobilized with Krantikari Manuwadi Morcha, Trust God Missionaries and the All India Muslim Personal Law Board and filed a petition of the purpose of re-criminalising the gay sex.

Speaking to The Hindu, Suresh Kaushal expressed his views that the prime motive behind taking up such a step was that it was a ‘religious issue’ and according to him homosexuality is something which is simply unnatural and once gay sex was decriminalised, a lot of gay men and lesbians started approaching temples and gurudwaras for marriage. They had to further put a ban on this as marriage in every religion will have to follow certain rituals.

Subramanian Swamy

The senior BJP leader is known for having a long-standing notion regarding homosexulatiy, that it is against the very practice of Hindutva. He further claimed that it is an American practice and further claimed that legalising consensual gay sex would further lead to developments like that of a commercial business evolving in the gay bars. In his statement after the delivery of the verdict by the Supreme Court, the minister had quoted that it is not something to celebrate about, it is not a normal thing and further stated that the government should rather invest in medical research to find out a cure for it.

Baba Ramdev

The yoga guru, Baba Ramdev had stated that homosexuality is a disease and that he can provide a cure for the same through the yogic practices. Going a step further, the yoga guru had even extended an invitation to the LGBTQ community claiming that he can cure the bad addiction which they possess by the way of practice of yoga on a regular basis.

Further, giving a scientific explanation for the same, Baba Ramdev stated that homosexuality is not something that is genetic. In addition to this, he even claimed that if homosexuality was unnatural and not genetic and none would have been born if our ancestors were homosexual and hence, there is a need to declare it to be unnatural and rather focus on finding out a cure for the same.

Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministers

When there was a final challenge posed to the matter of homosexuality in the Supreme Court, it largely went unopposed excepting for three Christian groups which were Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministers. These three organizations carried forth the ideology that the concept of homosexuality goes against religious ethics and hence should not be encouraged any further.

The three organisations were the respondents in the final case relating to striking down of section 377. During their fight against decriminalisation of homosexuality, they were backed by various religious groups and activists like that of Suresh Kumar Koushal. On the last day, they were joined by a lawyer, and she had stated that she had received a brief from Suresh Kaushal.

Why does decriminalising it matter?

Taking a look at the data it can be stated that while there are various instances which show that section 377 was indeed used to harass the LGBTQ community, it would be rather astonishing to note that a majority of the population who make use of that section are the married women who have been abused and physically tormented by their husbands and relatives. The section of 377 is invoked by them along with that of 498A while filing a complaint for the commission of unnatural offences. Again following the same pattern the research data of the states of Bihar, Haryana and Uttar Pradesh show that these victims are tortured and discriminated and not paid proper attention when they approach a police station to seek an end to their grievances.

It can further be stated that section 377 criminalised a group of people for being a sexual minority. Now, when this section of people approach the court to seek justice it is not just demanding protection as sexual minorities, but a need to recognise their inherent characteristics as to what they actually are. They moreover lay down the argument that right to sexuality, the right to choose a partner and sexual autonomy is something that leads to the formation of a cornerstone of human dignity. And section 377 is said to have a chilling effect on the right to equality, liberty, dignity, life and non-discrimination based on the ground of sexuality.

What next?

The most significant question which poses a challenge to the courts in India is the concept of ‘Order of Nature’ the courts have till date failed to understand what exactly is meant by order of nature in the context of homosexuality. And, once the constitution of India decides on the question of the order of nature and states homosexuality comes under the ambit of the order of nature, it would be way easier for the courts to decide on larger issues related to section 377 or homosexuality.

With the passage of time, it is evident that the courts in India will further be faced by the bigger questions on homosexuality like that of inheritance, reservation, adoption, employment and other aspects related to same-sex marriages. By arriving at a final conclusion regarding the matter of the order of nature on this particular matter, it would be a lot easier for the courts to decide the above-listed matters in the interest of justice.

Is it time to criminalise marital rape?

With the decriminalisation of homosexuality, incidentally, the court had diluted the aspects of section 498A of IPC which made it difficult for the women to make use of the law which had some deterring effect on the husbands causing harm to their wives. In addition to this, the courts even made it mandatory for the ‘family welfare committees’ to first look into the matter and no arrest or coercive measure would be taken action the person until and unless the family welfare committees investigate the matter and put forth their contention on the same.

The data regarding the working of these family welfare committees projects that in the grassroots levels like that of a village or a community, these committees can be influenced by the way of power and money and hence, their decision can be swayed in favour of the husbands family who would have committed the actual wrong.

Taking a note of such a development and the point that women when approached the police station for making use of 498A also invoked the section of 377 to seek justice makes it evident that they can no longer make use of 377 and hence there arises a need to scrap the law regarding marital rape and provide better conditions and a safe environment for the women of the country.

Future of POCSO

Section 377 is often seen to be used as a tool by the married women in order to highlight the ‘unnatural’ abuse which they have. At the same time, another important aspect found out by the Kerala government was that section 377 of IPC was also used by the Protection of Children from Sexual Offences Act POCSO, and with the striking down of section 377 it further goes on to reduce the stringency of the law on matters of unnatural offences related to children.

While section 377 now applies to minors in cases of bestiality, it is unclear if this section is also applicable to the married women. The rights regarding the married women and the step to criminalise marital rape has already been discussed in the previous segment. Bringing the attention further to the protection of child rights it can be said that there is again a need to bring some developments regarding the unnatural offences committed against the children and now that section 377 is struck down there arises a need for the POCSO Act to come up with the amendments and developments which would suit the current scenario.

Conclusion

Taking into consideration the developments evolving from the recent verdict of the court on the issue of homosexuality, it can be said that it has opened the doors to various people and different communities like that of LGBTQ to come out with their actual identity without any fear or agony and this even put an end to the discrimination which they had faced throughout the years. There were dissents put forth by several other people, especially those associated with the religious activities and some of the influential political figures who claimed themselves to be the ones upholding the ideology of Hindutva.

Amidst all the dissents and disfavour put in the course of the judgment of homosexuality, considering it on a larger perspective it is usually seen as a victory to the LGBTQ community and it further upholds the ideology that with the evolution of time the country is moving on a dynamic phase, making the age-old colonial practices which no longer fall in line with the current situation.