Section 377

Section 377 of the Indian Penal Code criminalized consensual homosexual acts, sparking debates on equality and human rights. Over the years, legal battles ensued, culminating in the landmark Naz Foundation case in 2009, where the Delhi High Court decriminalised homosexuality, citing violations of fundamental rights. However, the Supreme Court's 2013 ruling reinstated Section 377, prompting widespread criticism and protests. Finally, in 2018, the Supreme Court, in the Navtej Singh Johar case, struck down Section 377, decriminalising homosexuality and recognizing the rights of LGBTQ individuals. This historic verdict marked a significant step towards equality and acceptance, though challenges like social stigma and discrimination persist.

Section 377 of the Indian Penal Code, put in place in 1862, deals with private sexual acts among adults. This old colonial law criminalises certain sexual activities as "against the order of nature". The Law Commission of India suggested removing this section in its 172nd report, but no action was taken. However, in 2018, the Supreme Court of India made a historic decision. They ruled that Section 377 couldn't be used to punish consensual homosexual acts between adults. This decision came from a bench of five judges led by Chief Justice Dipak Misra, settling a batch of petitions calling for Section 377's decriminalisation.

What is Section 377?

Section 377 of the Indian Penal Code (IPC) states that engaging in carnal intercourse against the natural order with any man, woman, or animal is punishable. Section 377 was established during the colonial era and remained unchanged for decades. It criminalized consensual homosexual acts between adults, along with certain heterosexual activities deemed "against the order of nature."

• Discriminatory Nature: For years, the LGBTQ community and others argued that Section 377 was discriminatory. It provided legal cover for the harassment and intimidation of gay couples, promoting inequality.
• Supreme Court Intervention: In 2018, the Supreme Court of India made a landmark ruling regarding Section 377. The court found its application against consenting adult homosexuality irrational and arbitrary, emphasising it was unjustified.
• Revised Application: Post the Supreme Court ruling, Section 377 now applies solely to non-consensual sexual acts, sexual encounters with minors, and bestiality. These acts remain criminal offences under the law.

The Beginning of the Challenge (2001-2004)

• Naz Foundation filed the first significant case against Section 377 in 2001.
• However, in 2004, a two-judge Delhi High Court Bench dismissed the case, considering it merely an academic challenge to the law.

Landmark Decision (2009)

• Upon Supreme Court's order, the Delhi High Court reheard the case.
• In 2009, the High Court delivered a historic verdict, decriminalising Section 377, stating that consensual adult intercourse shouldn't be illegal.

Challenging the Verdict (2013)

• The 2009 verdict faced challenges, notably by Suresh Kumar Koushal and others.
• In 2013, a two-judge Supreme Court Bench overturned the High Court's decision, reinstating Section 377.

Global Outcry and Review (2014-2016)

• The 2013 verdict sparked widespread protests and criticism globally.
• Review petitions filed in 2014 were dismissed.
• In 2016, a curative plea was referred to a five-judge Bench, reigniting hope for change.

Progressive Judgments (2014-2017)

• In 2014, the NALSA judgement recognized transgender rights, paving the way for broader discussions on LGBTQ+ issues.
• The 2017 Puttaswamy judgment affirmed the right to privacy, including sexual orientation, contrasting with Section 377.

Reopening the Debate (2018)

• In 2018, the Supreme Court made history by ruling in the Navtej Singh Johar case to decriminalise homosexuality in India, striking down Section 377.
• A Constitution Bench, led by Chief Justice Dipak Misra, acknowledged the erosion of rights for LGBTQ+ individuals.
• The Court emphasised the violation of constitutional articles (Articles 14, 15, 19, and 21) protecting equality, dignity, autonomy, expression, and protection from discrimination for LGBTQ individuals.

• Decriminalisation of Homosexuality: The Supreme Court's ruling effectively removed the criminalization of homosexuality in India.
• Right to Equality: The Court emphasised Article 14, ensuring equality before the law for every individual within India's territory.
• Preeminence of Constitutional Morality: Upholding constitutional morality, the Court asserted that religious or public morality cannot override equality before the law.
• Recognition of Modern Understanding: The Court acknowledged modern psychiatry and legislation, which no longer consider homosexuality a mental disorder, leading to the conclusion that it shouldn't be penalised.
• Natural Aspect of Homosexuality: Recognizing homosexuality's existence in the animal kingdom, the Court dispelled the notion that it goes against the natural order.
• Application of International Principles: The Court advocated for the application of the "Yogyakarta Principles" in Indian law. These principles, established in 2006 in Indonesia, outline the application of international human rights law concerning sexual orientation and gender identity.

1. Fundamental Rights
   • Section 377 unjustly criminalised a minority based on their sexual orientation, denying them their fundamental rights to sexuality, autonomy, and freedom.
   • Petitioners argued that this section contradicted the fundamental rights (Article 19 right to freedom and article 21 right to life) enshrined in the Constitution, perpetuating discrimination.
2. Health Issues
   • Criminalization hindered access to healthcare for LGBTQ individuals, particularly in HIV/AIDS prevention and treatment.
   • Social stigma and lack of rights correlated with higher rates of substance abuse, violence, and mental health issues.
3. Law vs. Morality
   • Many asserted that legal prohibitions should not mirror religious or traditional moral standards, as the law should treat everyone equally.
4. Section 377 and Child Abuse
   • While some feared a repeal might impact child abuse cases, the enactment of the POCSO Act in 2012 addressed this concern effectively.
5. Implications for Heterosexuals
   • Section 377 also affected consensual acts between heterosexuals, highlighting its broad impact beyond LGBTQ individuals.

• Certain religious groups opposed the repeal, citing religious beliefs against homosexuality.
• Some argued that legalising homosexuality would lead to health hazards such as the spread of diseases like AIDS.

• The repeal of Section 377 signifies progress for LGBTQ rights and equality in India, although societal acceptance remains a work in progress.
• Previously harassed by law enforcement, LGBTQ individuals now enjoy legal protection, fostering a more inclusive society.
• The ruling ensures access to fundamental rights for sexual minorities and emphasises the need for societal acceptance and change, particularly within families.

1. Legal Recognition and Protection
   • Despite the decriminalisation of same-sex relations in 2018, there's no explicit law prohibiting discrimination or violence based on sexual orientation or gender identity.
   • LGBTQ individuals lack legal safeguards for basic rights like education, healthcare, employment, housing, inheritance, marriage, and adoption.
2. Harassment and Violence
   • LGBTQ individuals encounter harassment, blackmail, abuse, and hate crimes from various sources including police, family, employers, landlords, and strangers.
3. Social Stigma and Prejudice
   • Society often views LGBTQ individuals as unnatural, immoral, or diseased, leading to ridicule, bullying, ostracism, and exclusion from families, communities, and religious institutions.
   • Internalised homophobia further impacts self-esteem and mental health.
4. Lack of Awareness and Education
   • General public and authorities often lack understanding of LGBTQ issues, leading to ignorance and misinformation.
   • Negative stereotypes and myths persist, portraying LGBTQ individuals as abnormal, contagious, predatory, or corrupting.
5. Lack of Representation
   • LGBTQ people are often underrepresented and invisible in media, literature, arts, and culture, further perpetuating stereotypes and marginalisation.

Concerted efforts from various stakeholders must be made to address the challenges faced by LGBTQ individuals in India. The government must enact comprehensive anti-discrimination laws, recognize and respect diversity, and ensure equal access to essential services. Civil society should continue to raise awareness, provide support, and foster dialogue for LGBTQ inclusion. Empowering the LGBTQ community to claim their rights and celebrate their identity is essential. While Supreme Court judgments have propelled LGBTQ rights forward, there's still much to be done, including legal recognition for same-sex unions, adoption rights, and anti-discrimination laws. Upholding constitutional morality and enacting progressive legislation are crucial steps toward building a more inclusive and tolerant society. Ultimately, recognizing LGBTQ rights as human rights is fundamental to creating a society where all citizens are treated with respect, dignity, and equality.