This article is written by Amandeep Kaur, a student of Symbiosis Law School, Pune. The author in this article has discussed in detail the long journey of section-377 of IPC, its history, challenges faced and finally decriminalization of section-377. 

Introduction

India has acquired a place among the 28 countries of Asia to legalize homosexuality and to recognize LGBT rights. The judgment passed in Navtej Singh Johar v. Union of India has changed the life of many in the country. Prior to this judgment, the Lesbian Gay Bisexual Transgender Community didn’t have such rights as Homosexuality was a punishable offence under sec-377 of the Indian Penal Code, 1860.

Historical Background of Section-377

Homosexuality was never a crime or punishable in ancient India. There are many instances which prove this point. Following are some of the instances:

• Khajuraho Temple- the famous temple situated in Madhya Pradesh is decorated with many sculptures reflecting sexuality in ancient India. It was built in the 10th century by rulers of Rajput Chandela Dynasty. One may not find any other temple in India depicting all the emotions of human nature. Some of these sculptures also display homosexual acts which prove the existence of homosexuality in ancient India.   
• Manusmriti- it is one of the famous law code which was followed by a majority of the people at that time. It prescribes punishment for the homosexual acts performed by either man or woman. Though this script does not approve homosexual acts it does prove the existence of homosexuality at that time. 
• Arthashastra- it is popularly known as arthashastra of Kautilya which is an ancient manual. It is another proof of the existence of homosexuality during that period as the manual impose a duty on the king of punishing those who are indulged in homosexual acts. 

Who criminalized homosexuality?

This is a question which every person of the LGBT community is curious to know. Indian Penal Code was framed by the British Colonial Rulers in the 19th century. The whole code was based on the then existing British laws and was full of complications and sec-377 was one of them. Section-377 IPC was framed according to the Buggery Act which was a law of the 16th century. 

The Buggery Act, 1533

This act defined homosexual acts, sodomy, sexual activities involving animals as unnatural offences. The Parliament of England passed this Act in 1533 under the kingship of King Henry VII. This act defined buggery as an act which is against the will of God. Under this act, unnatural offences were punishable by death. The very first law commission of India which was under Thomas Macaulay brought this law in India and drafted it as sec-377 of Indian Penal Code of 1860.   

Challenges to Section-377

NGO- AIDS Bhedbhav Virodhi Abhiyan (ABVA)

The very first challenge faced by Sec 377 was in 1994. This NGO filed a petition in the Delhi High Court for decriminalizing this section. The facts were that after observing homosexuality in the Tihar Jail the workers of the NGO wanted to distribute condoms among the male inmates. The then superintendent of Tihar Jail, Kiran Bedi disapproved this as according to her, this would have encouraged homosexuality. This petition was then dismissed in 2001.

Naz Foundation vs. Government of NCT and Ors. (2009)

Facts of the case- it was a special leave petition filed by Naz Foundation, a Non-Governmental Organisation in 2006 as a PIL filed by it in 2001 which was dismissed in 2004 followed by a review petition which was again dismissed for challenging the constitutional validity of sec-377 of IPC which criminalizes homosexuality. This NGO was working for the prevention of HIV/AIDS and therefore, had interaction with such sections which also included homosexuals. According to the NGO, this section of society was extremely vulnerable to HIV as this particular section faced discrimination, abused from public and was also neglected by public authorities. According to the petitioner sec-377 of IPC is also violating some of the fundamental rights of homosexuals such as Article 14, 15 and 21. 

Issues raised

• Whether section-377 of IPC is violative of Article 14 and 15 of the Indian Constitution?
• Whether section-377 of IPC is violative of Article 21 of Indian Constitution?
• Whether section-377 of IPC is unconstitutional?

Arguments from the Petitioner side 

• According to the petitioner, Sec-377 of IPC which criminalizes homosexuality is outdated and needs to be modified according to the needs and wants of the modern society. 
• Sec-377 is also violative of Right to life i.e. Article-21 of Indian Constitution as nothing can be more private than private, consensual sexual relations which are also covered under the ambit of Right to Privacy which is protected under Article-21. 
• Sec-377 also discriminates on the basis of sex i.e. based on their sexual orientation as mentioned in Article-15 which violated another fundamental right of homosexuals.
• Moreover, sec-377 of IPC which penalized “unnatural sexual acts” has no rational connection to the classification created between procreative and non-procreative sexual acts.
• On the above-mentioned arguments, it is submitted by the petitioner that sec-377 of IPC which criminalizes private, consensual sexual activity between two adults needed to be scrapped. 

Arguments from the Respondent side

• According to the affidavit submitted by the Ministry of Home Affairs, Government of India, sec-377 was included in the statute book in order to prevent cases of child sexual abuse. They have also submitted that such acts cannot be considered as legitimate just because two adults have consented to it. Moreover, interference by public authorities is permissible in private and family life for public safety and protection of health and morals.
• National Aids Control Organisation (NACO) has agreed to the contention made by the petitioner i.e. homosexual community is extremely vulnerable to HIV/AIDS. According to their report, there are 25 lakh homosexuals who are under High-Risk Behaviour group i.e. people who are at the high risk of getting infected by HIV. NACO has mentioned in the affidavit submitted by them the various methods to be adopted in order to control the high numbers of this community getting infected from HIV. 
• Respondent no. 8 is a coalition of 12 organisations that represents child rights, women’s rights, human rights, health concerns as well as the rights of the same sex desiring people including all those who identify as Lesbian, Gay, Bisexual, Transgenders, Hijra and Kothi persons. Respondent no. 8 supports the contentions of the petitioner and urges the need to end discrimination under sec-377.  

Judgment Given

• If one person prefers sex with the same gender it is their choice and if such sexual involvement is consensual and does not harm the other then invasion into these matters will be a breach of privacy and therefore a violation of  Article-21. The court referred to Article 12 of Universal Declaration of Human Rights, Article 17 of the International Covenant of Civil and Political Rights and the European Convention on Human Rights. 
• Right to live with dignity is another right recognised under Article 21 of the Indian Constitution and section-377 denies such right by criminalising the identity of a person based on his or her sexuality. 
• Homosexuals and transgenders constitute a considerable section of the society which is denounced by section-377. The LGBT community is forced to live according to society and is exposed to harassment, exploitation, cruelty and humiliation. 
• Several countries including the US, England, Australia and Canada have decriminalized consensual sodomy and unnatural acts.  
• The Law Commission in its 142nd report has also expressed its desire for the deletion of  section-377. According to their report, section-377 was meant to criminalize non-consensual sex and child abuse but now after the insertion and amendment of sections-375 to section-376E in IPC, there is no need for section-377. 
• Section-377 also targets a particular community i.e. LGBT and discriminates them on the basis of their gender and sexual identity which is unreasonable and unfair and is therefore violative of  Article 14 of the Indian Constitution.
• The court also decided that sexual orientation is a ground parallel to sex and Article 15(2) of the Indian Constitution prohibits discrimination on the basis of sexual orientation. 
• The court declared section-377 as unconstitutional as it violates Articles 21, 14 and 15 of our Constitution. Moreover, section-377 will continue in cases of non-consensual penile non-vaginal sex and penile non-vaginal sex which involves minors i.e. a person below 18 years of age.  

Suresh Kumar Koushal and Ors. Vs. NAZ Foundation and ors.

Appeal- This case is an appeal against the previous judgment on section-377 of IPC i.e. against the case NAZ Foundation vs. Government of NCT and Ors.

Issues raised

• Whether section-377 of IPC violative of Article 14 and 15 of the Indian Constitution?
• Whether section-377 of IPC violative of Article 21 of Indian Constitution?
• Whether section-377 of IPC is unconstitutional?

Arguments from the Appellant side 

• The statistics which the NACO represented in the previous case are not sufficient for proving that section-377 of IPC is the reason behind the vulnerability of LGBT community to HIV/AIDS and that decriminalization of the section will lead to the reduction of such cases. 
• Section-377 does not discriminate on the basis of sexual orientation and is gender neutral as it refers to all the genders involved acts mentioned in the respective section. They also argued that this section refers to the carnal intercourse and such acts which has the tendency to cause harm to both individuals participating in such an act. Therefore, section-377 is not violative of Article 21 of the Indian Constitution i.e. the right to privacy and dignity guaranteed under it but is just protecting the people of the country from being exposed to incurable disease such as HIV/AIDs.
• Section-377 is not a hindrance in the personality development of homosexuals or does not affect their self-esteem in any way. The High Court in the previous judgment has made a wrong observation as its observation is based on the reports prepared by academicians, which cannot be relied upon. Hence, section-377 does not breach Articles 14 and 15 of the Indian Constitution. 
• Another argument made was that section-377 was enacted in IPC in order to protect social values and morals. The appellants also referred to the “order of nature” and has discussed in detail that each and every organ of a human body is assigned some functions which if are abused goes against nature and will lead to the obstruction of the Indian social culture and structure.   
• The founding fathers of the Indian Constitution never intended to include sexual orientation within the term ‘sex’. Moreover, considering the principles of health and morality of the people of the country restrictions can be imposed on the right to sexual orientation.  
• Indian courts do not have the right of legislating any statute. The Delhi High Court instead of striking down section-377 would have left the task of deciding the constitutionality of section-377 on Parliament.

Arguments from the Respondent side

• Article 21 guarantees human rights and sexual rights and sexuality are covered under its domain which is being violated by section-377. Scientifical observations have proved that consensual sex between the same gender is not against the “order of nature”. Moreover, this section deprives the LGBT community of living with full moral citizenship. 
• Section-377 also diminishes the human dignity of individuals by making them criminals based on their sexual personality. Moreover, by criminalizing sexual acts between homosexuals it also violates their right to health protected under Article 21 as such section of the society is impaired of health services and are therefore more vulnerable to HIV/AIDS.
• The expression ‘carnal intercourse against the order of nature’ which has been used by the appellants over and again has not been defined anywhere in the statute. Moreover, this section is vague and arbitrary in nature as the people it is targetting does not even know the true intention of this section because no clear prohibition has been specified by it.   
• Section-377 marks a difference between carnal intercourse against the order of nature and carnal intercourse which is not against the order of nature, but there is no such legislation guiding on this point which makes the difference arbitrary. Therefore in the absence of any legislative guidance, it is supposed to be decided by the Court.   
• Another important argument made was that the Court should take into consideration the changing values and changing society. Social values and morals laid down 50-60 years ago cannot be the same now. Change is the law of nature and section-377 is a pre-constitutional statute which needs to be looked upon by the Judicial officers of law.

Judgment given

• The High Court and the Supreme Court has the authority to declare any law enacted before or after the Constitution of India as void if it violates any of the rights mentioned in Part III of the constitution. 
• Declaring any law as unconstitutional is one of the last option available to the High Court and the Supreme Court and if any law is declared unconstitutional then it is the duty of the Courts to give an appropriate remedy which is in favour of the constitution. 
• The Apex court also mentioned that both the High Court and the Supreme Court does not have to strike down legislation or law just because it is disused or the beliefs of the society has changed. The courts can strike down a law only if it is proved beyond reasonable doubts that it is infringing constitutional provisions. 
• The court mentioned that section-377 is gender neutral and does not targets any particular group of a section of society but criminalizes certain acts which if committed by a person irrespective of their age or consent will constitute an offence.    
• The writ petition filed in the Delhi High Court by the respondents, in this case, lacked various aspects such as cases which involved harassment and assault towards sexual minorities by the public and public authorities. Moreover, it did not mention any incident of discriminatory behaviour by State agencies towards homosexuals which lead to the denial of their human rights.
• The Bench of the Delhi High Court overlooked the small fraction of the country constituting of lesbians, gays, bisexuals and transgenders. Considering the fact that people prosecuted for committing an offence in the past 150 years does not even amount to a total of 200 it cannot be declared that section-377 of IPC is violative of Articles 14, 15 and 21 of the Indian Constitution. 
• If any law is misused by police authorities or any other state authority, it doesn’t mean that it is ultra vires or unconstitutional. Every court must consider only relevant factors while deciding the constitutionality of any legislation. 
• The  Supreme Court after hearing the arguments from both sides concluded that section-377 of IPC is not unconstitutional and does not violate any right contained in the Indian Constitution. 

 Navtej Singh Johar and ors. Vs. Union of Indian and ors.

Appeal- This case is an appeal against the judgment given by the Supreme Court in the previous case of 2013.

Coram- CJI-Dipak Misra, Justice A.M. Khanwilkar, Justice Rohinton Fali Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.

Issue raised– The main issue here raised was about the constitutionality of section-377 of IPC.

Submissions from Petitioner side

• Homosexuality, bisexuality or any other sexual interest is something natural and is not a physical or mental illness. It is a reflection of personal choice and criminalizing it will lead to the destructing of Article 21 of the Indian Constitution by affecting an individuals dignity and his or her gender identity. 
• It is also argued that a person will not become an alien if his community is not accepted by the society at large and therefore rights of the LGBT community who constitutes 7-8% of Indian population needs to be recognised. 
• Section-377 is based on the morals and social values of Victorian-era where sexual activities were just considered as a reproductive process and nothing more than that. This section is the only reason that the LGBT community has suffered discrimination and abuse all their lives and will continue to suffer if homosexuality is criminalized again.
• If section-377 is retained in without making any amendments then it would lead to the violation of various fundamental rights of the LGBT group i.e. right to freedom of expression, right to privacy, right to equality, liberty and dignity.  
• Petitioners have also mentioned that people who choose inter-religious and inter-caste marriages are the same as people who choose a partner of same-sex and there is no difference between them. Society may or may not disapprove of inter-caste and inter-religious marriages but it is the duty of the court to enforce constitutional rights of every citizen. Position of the LGBT group is the same, even though the majority is disapproving them but it is to the court to protect their constitutional rights from being violated. 
• There is no reasonable classification between natural and unnatural sex and even the expression “carnal intercourse against the order of nature” is not defined anywhere. Therefore section-377 is arbitrary and vague and is violative of Article 14.
• The section is also violative of Article 15 as it discriminates the LGBT community on the basis of sex of their partners which is prohibited under Article 15 of the Indian Constitution. 

Submissions from Respondent side 

• It has been submitted by them if section-377 is declared as unconstitutional then the family system will be destroyed and many corrupt young Indians will see this as a trade and will start using homosexual activities for money. Moreover, individuals indulging in such activities are more likely to contract HIV/AIDS which will increase the percentage of AIDS victim in the country.
• It is also contended that the political, economic and cultural heritage of countries were consensual homosexual acts have been decriminalized are very much different from a multicultural and diverse country like India.
• Fundamental rights are not absolute and decriminalizing section-377 will leave all the religions practised in the country as objectionable and will lead to the violation of Article 25 of Indian Constitution which also needs to be given due consideration. 
• They also submitted that clarifications can be added to section-377 by defining every word which is controversially mentioned in the section. The section will then target people with malafide intentions and non-consensual acts.
• The main reason behind criminalizing carnal intercourse against nature is to protect the citizens from the injurious consequences as protecting the citizens from something hazardous is one of the aims of criminal law. 
• Article 15 prohibits discrimination on the basis of sex but not on sexual orientation, therefore section-377 of IPC is not violating Article 15. Moreover, it is also not violative of Article 14 as the section only mentions a particular offence along with its punishment.

Judgment given

• It doesn’t matter how minuscule is the LGBT section, they also have the right to privacy which includes physical intimacy. Their choice of partner might be different but it does not mean they will be prosecuted for that. Section-377 does curtail their human dignity and their personal choice, therefore violating their right to privacy which is covered under Article 21.
• The main objective behind retaining section-377 is to protect women and children from being abused and harasses by carnal intercourse but consensual carnal intercourse which is performed by the LGBT community is neither injurious to children nor women. Moreover, non-consensual acts have already been referred to as an offence under section-375 of IPC which implies that section-377 is redundant and discriminative towards one section of the society and is therefore violative of Article 14 of the Indian Constitution rendering it unconstitutional.
• Our Constitution being liberal, it is not possible that right of choice will be absolute. Therefore some restrictions have been imposed on the principal of choice. However right of choosing a partner for intimate relations is completely a matter of personal choice which cannot be restricted. Whereas, section-377 of the Indian Penal Code restricts the right of LGBT community of choosing a partner for sexual matters and is therefore irrational and arbitrary. 
• Public order, decency and morality are the grounds which can impose reasonable restriction on the fundamental right of expression. Any act done in affection by the LGBT coommunity in public  does not disturb the public order or moral values untill it is decent enough and is not obscene. However, section-377 is again unconstitutional in the sense that it does not connect with the criteria of proportionality and is violating the fundamental right of expression of LGBT group.
• The Supreme Court declared that section-377 is unconstitutional as it violates Articles 14, 15, 19 and 21 of the Indian Constitution and therefore overruled the judgment given in Suresh Koushal annd ors. vs. Naz Foundation and ors. Moreover, it also declared that section-377 will be governing only non-consensual sexual acts committed against any adult and minor. 

Conclusion

So now homosexuality has been decriminalized but the reaction of society and different organisations is still a challenge for the LGBT community. Though there are organisations such as All India Muslim Personal Law Board and the Jamaat-e-Islami Hind who expressed their disappointment towards the verdict given by the Apex Court on section-377. There also exist organisations and parties who are satisfied with the given verdict, namely, Amnesty International, RSS, CPI(M) and UN. According to the surveys conducted by various LGBT activists in different parts of the country, life is much better and simple for the LGBT group. Every society needs time to accept any change. The time is not so far when the society will accept the LGBT community and their rights.