LGBT-Section 377

Introduction

Chapter XVI, Section 377 of the Indian Penal Code (IPC) 1860 was introduced during the British rule of India. It criminalises sexual activities "against the order of nature." It says 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 term which may extend to ten years, and shall also be liable to fine.

The ambit of Section 377 extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.

The Beginning

The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication Less than Gay: A Citizen's Report, spelled out the problems with 377 and asked for its repeal.

As the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust. The activist group filed a public interest litigation (PIL) in the Delhi High Court in 2001 seeking legalisation of homosexual intercourse between consenting adults.

Delhi High Court historical judgment.

In a historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section there by legalising consensual homosexual activities between adults. While striking down the section the Court stated that the essence of the section goes against the fundamental rights of citizens in the Constitution. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14, 15 and 21 of the Indian Constitution. However, the court clarified that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

Further it was argued that the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

Supreme Court’s December 2013 Judgment

However, on 11 December 2013 this judgment of the Delhi High Court was struck down by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation case and, consequently, Section 377 was reinstated with full force!!

The Supreme Court was further very specific that this was not the end of the debate and it asked parliament to take a decision on whether Section 377 should be repealed or not.

In response, the Union Government filed a review petition on 21 December 2013 stating that the judgement was violating rights under article 14, 15 and 21 of the Constitution. Besides, Naz Foundation also filed a review petition against the Supreme Court order on Section 377. While responding to the litigation, the Supreme Court on 28 January 2014 dismissed the review petitions. The petitions were dismissed on the ground that Section 377 is Constitutuonal and applies to sexual acts irrespective of age or concent of parties. 

New Impetus

1. On 15 April 2015, the Supreme Court in National Legal Services Authority v. Union of India (declared transgender people to be a 'third gender') case recognized the right to identity of transgender persons. The Supreme Court also specifically noted that Section 377 is used to harass and physically abuse transgender persons.
2. Following the NALSA verdict, Tiruchi Siva, a member of parliament introduced a private member’s Bill titled Rights of Transgender Persons Bill, 2014 in the Parliament. The bill was passed by the Rajya Sabha and is pending before the Lok sabha. Both the NALSA decision as well as the Rights of Transgender Persons Bill, 2014 have shown the determination of both the Supreme Court and parliament to protect the rights of all citizens including transgender persons. 
3. Another state institution, the Law Commission of India as early as 2000, has in its 172 Report recommended that Section 377 be deleted.
4. On 18 December 2015, Lok Sabha member Shashi Tharoor of the Indian National Congress, whose leaders Sonia Gandhi and Rahul Gandhi had earlier expressed support for LGBT Rights, introduced a private member's bill to replace Section 377 in the Indian Penal Code and decriminalize consensual same-sex relations. The bill was defeated in first reading, 71-24. In March 2016, Tharoor tried to reintroduce the private member's bill to decriminalize homosexuality, but was voted down for the second time.

5-member Constitution Bench to review Section 377

On 2 February 2016, the final hearing of the curative petition was submitted by the Naz Foundation and others came for hearing in the Supreme Court. The three member bench headed by the Chief Justice of India TS Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a 5-member constitutional bench for a possible back-to-roots, in-depth hearing.

The open court hearing was the result of two years of waiting since the batch of eight curative petitions was filed in March 2014 by parents, civil society, scientific and LGBT rights organisations against the 28 January 2014 apex court verdict.

Against the repealing of Section 377

• Apostolic Churches Alliance opposing the petitioners argued that homosexuality was an abomination in the Bible.
• It is contended that decriminalising homosexuality would make the Prevention of Immoral Traffcking Act, 1956 redundant.
• If the section is allowed then sexual transmitted diseases like AIDS would further spread and harm the people.
• It would lead to a big health hazard and degrade moral values of society.

Conclusion

Section 377 continues to have a profound impact on the dignity and self esteem of LGBT persons and posses a continuing threat to the peaceful enjoyment of familty life of LGBT persons across the country. Therefore all the stakeholders should work in the coordination for the dignity and the rights of LGBT.

Furthermore, Section 375 of the IPC should be amended so that protection from rape is extended to all persons regardless of gender or sexuality in line with the Justice Verma Committee recommendations.

Latest update

The latest criticism from the court is strident and explicit. While declaring that the right to privacy is a fundamental right and an inherent component of human liberty and dignity, the nine-judge Bench has observed that the rationale behind the Koushal judgment is flawed and unsustainable. It has said the rights of LGBT persons are real rights founded on sound constitutional doctrine and not “so-called rights” as the earlier Bench had described them disdainfully. Yet, in a show of uncharacteristic reticence and contrary to the history of the evolution of constitutional jurisprudence, the earlier Bench had suggested that the provision can be diluted only through the legislative route. 

Transgenders, even though insignificant in numbers, are entitled to human rights, another Bench had observed in National Legal Services Authority (2014), in a subtle hit at the “minuscule minority” formulation in Koushal. At another point, it said Section 377 had been an instrument of harassment and abuse, something the earlier judgment had refused to accept. Significantly, it advocated the adoption of the Yogyakarta Principles — norms on gender identity and sexual orientation adopted by human rights experts in 2006 in Indonesia. By the latest verdict, sexual orientation is an aspect of the right to privacy and an inalienable part of human dignity, freedom, and personal liberty.