Section 377 of Indian Penal Code, 1860


Homosexuality has been a talking point from a very long period of time in India where people had different opinions about it, where one section of the society treated it as a disease which is not curable and such people should be separated from the society while other opined that this is something which is natural and they are no different from other people. The provisions relating to homosexuality in India was considered to be punishable till 2018, however, now the Hon’ble Supreme Court has ruled out Section 377 of IPC by providing LGBT community with their long awaited rights for which they have been fighting for a very long period of time

Earlier Law on Homosexuality in India:

Section 377 of IPC read as follows “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 a term which may extend to ten years, and shall also be liable to fine.” However, the same now has been declared unconstitutional by the Supreme Court.

In the 42nd Law Commission Report it was submitted that, “Indian society by and large disapproved of homosexuality which disapproval was strong enough to justify it being treated as criminal offence even where the adults indulge is in private. Law cannot run separately from the society since it reflects perception of society.”[1] Also, it was considered that the primary objective of the marriage is procreation and as marriage being a social institution legal binding of same sex marriage would undercut the norm that is related to the marriage as it establishes that there is no necessary link between procreation and marriage.

When the people started getting aware they came to know about the law relating to homosexuality and with this awareness many countries recognized the same sex marriage and Netherland became the first country to recognize same sex marriage in the year 2001. After that many countries recognized the same stating that it is the need of an hour to give the rights which LGBT community has been deprived for many years.

It is also important to state that “Section 377 punishes certain persons who have carnal intercourse against the order of nature with inter alia human beings… it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be possibility conception of human beings which in case of coitus per os is impossible.”[2]

New Law on Homosexuality in India:

When the Constitution of India was drafted by it was clearly mentioned that the Constitution of India is a living instrument made for the progressive society. Dr. Ambedkar had felt that the Constitution can live and grow on the bedrock of “constitutional morality”. The whole issue that was prevailing was of the constitutional morality and public morality. It is important to note that morality is not eternal, it changes with time. What once was a moral practice doesn’t mean that it will remain moral for infinite period of time. Furthermore, “Morality means the ideas about right and wrong which are accepted by the right thinking members of the society as a whole of the country.”[3]

For the very first time in the year 2001, a petition in the Delhi High Court was filed by Naz Foundation that works on HIV/AIDS and sexual health issues, on which the Delhi High Court exercising their rights held Section 377 unconstitutional. This judgment was termed as revolutionary by many jurists but soon this particular judgment was overruled by the Hon’ble Supreme Court. It was held by the Supreme Court that amending or repealing of this provision should be left to Parliament and not to judiciary. In this case SC also stated that this particular provision is against the order of the nature and such should not be decriminalized in the present situation. Supreme Court also held that homosexuality is the sexual propensity for persons of one’s own sex.

In the Puttoswamy’s case a landmark judgment was given by the court and held that “Right to Privacy” is a part of Article 21 and is also a Fundamental Right. Although, all the Fundamental Rights comes along with reasonable restrictions but with privacy becoming a Fundamental Right it became evident that sooner or later the rights of the LGBT community will be recognized and Section 377 will get decriminalize. The court stated that sexual orientation is an “essential component of identity” and the rights of lesbian, gay, bisexual and transgender population are “real rights founded on sound constitutional doctrine.”

Right to privacy is implicit in right to life. A citizen has a right to safeguard the privacy of himself, his family, procreation, marriage, education and child bearing. Furthermore, “it is a right that has to be left alone”.[4] “Right to Privacy has been considered implicit in our constitution.”[5]

After a year that day came when Constitutional Bench of the Supreme Court decriminalized Section 377 stating that it is the need of an hour to make this provision unconstitutional. “A panel of five judges issued a unanimous judgment striking down the provision and affirming the right to equality and dignity.  “Respect for individual choice is the essence of liberty,” Hon’Ble Justice Dipak Misra, India’s chief justice, told a packed courtroom. “This freedom can only be fulfilled when each of us realizes that the LGBT community possesses equal rights.”

[1] 42nd Law Commission Report, 1971

[2] Khanu v. Emperor, AIR 1932 Cal 487

[3] Brij Gopal v. State of M.P., AIR 1979 MP 173 (181)

[4] R Rajagopal v. State of Tamil Nadu, 1995 AIR 264, 1994 SCC (6) 632

[5] PUCL v. Union Of India, AIR 1997 SC 568, JT 1997 (1) SC 288, 1996 (9) SCALE 318, (1997) 1 SCC 301, 1996 Supp 10 SCR 321, 1997 (1) UJ 187 SC

Kushagra Agrawal is pursuing his 5th Year BBA.LLB from Bharti Vidyapeeth New Law College, Pune. He specializes in the field of Trademarks and Copyrights, Sports laws, Competition Law, Corporate Laws, Company Laws and Business Laws.

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