Timeline of section 377 of IPC

  • In 1860 Section 377 of the Indian Penal Code deems homosexual intercourse as a criminal offence.
  • While in 2001 Naz foundation files a writ petition challenging the section 377 of IPC.
  • Delhi High Court had in 2009 ruled that Section 377 of IPC, which prohibits “carnal intercourse against the order of nature with any man, woman or animal”, was unconstitutional.
  • In 2013 Supreme Court set aside the Delhi high court’s ruling on section 377 IPC.
  • In 2014 a new rights group LGBT Professional Network file an appeal at Supreme Court for a review in the matter.

Global Experience on LGBT laws

  • The criminal code of Napoleon was silent on the sexual relationship of consenting adults.
  • In USA, the effort of Senator Joseph McCarthy led to wide spread persecution of gays at every level of government activity.
  • During Eisenhower’s presidency, he discharged homosexuals from private and defence corporations by an executive order.
  • After 1970, the view that the homosexuality was pathological and dangerous was gradually discarded.
  • In 1973 the homosexuality was removed from the list of mental disorders.
  • By 1990 the discrimination based on homosexuality had banned across USA through executive decisions.

Why 377 need a relook?

  • It is a naked violation of Fundamental rights Article 14, 15, 19 and 21.It also can be used for arbitrary arrest of an individual.
  • Section 377 of IPC is law widely misused against innocent homosexual population. The law gives an opportunity to people to use and abuse the criminal justice system.
  • This provision view the matter of homosexuality as an act against the natural order, which itself is contentious.
  • In our country where homosexuality continues to be socially stigmatized and legally penalized, which affects the life of many women as well as men.

Why we need 377?

  • Many of the citizens view homosexuality as unnatural and a sin
  • Most of the present day religions are against same-sex marriages.
  • Some intervening parties to seek public opinion through a referendum on the issue of decriminalization of homosexuality.
  • A hard scientific truth is that any sex other than natural cause of many serious ills in the human beings. For example homosexuals are more prone to sexual transmitted diseases like AIDS etc. than any normal person.
  • Section 377 decriminalization may have following implications in India:
    • Sex ratio may further decline if more people would adopt for homosexuality.
    • Students and Army people might opt for homosexuality to remove stress.
  • A moral wrong becomes a legal wrong only when its consequences are for society and not just the person/s committing it.

Supreme Court view

  • SC uphold “constitutional morality” and not the “majoritarian morality” while deciding on the constitutional validity of Section 377 of the Indian Penal Code.
  • SC bench to decide constitutionality of Section 377, whether Section 377 stood in conformity with Articles 21 (right to life), 19 (right to liberty) and 14 (right to equality) of the Constitution.
  • The Supreme Court said a larger group of judges would reconsider the previous judgment and examine Section 377’s constitutional validity.
  • The social stigma attached to homosexuality was a hindrance for the lesbian, gay, bisexual and transgender (LGBT) population to get access to medical facilities, which is guaranteed under the Constitution as right to life, especially in small towns.
  • “It (homosexuality) is not an aberration, but a variation,” Justice Indu Malhotra said while pointing out that homosexuality existed in other animal species as well.
  • Section 21(1)(a) of the Mental Health Act, 2017, which prohibits any discrimination among people with mental illness on various grounds including their sexual orientation, to assert that Parliament recognised the existence of the LGBT population and prohibited any discrimination on that ground.
  • The framework: