Unnatural Offences – Section 377 of the Indian Penal Code

It reads:
“ 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.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.^”

Even consensual heterosexual acts such as fellatio and digital penetration may be a punishable offense under this law. It is another matter that convictions under these provisions are extremely rare.
There has not been a single conviction for homosexual relations in India during the last twenty years.

Human Rights Activists claim misuse

However, human rights activists have been alleging that the law has been used to harass people such as sexual minorities and transsexuals. They have published reports of the rights violations in India.

In 2006, 100 Indian literary figures criticised this provision.
Some Indian Central Government Ministers also criticised the provision. In 2008, a judge of the Bombay High Court called for scrapping of the law.

Naz Foundation India TrustThe Naz Foundation India Trust, an activist group, filed a public interest litigation in the Delhi High Court in 2001, The following is the long sequence of events:

2001:   Naz Foundation, an NGO fighting for gay rights, files PIL seeking legalisation of gay sex among consenting adults.

Sept 2, 2004: Delhi High Court dismisses the PIL seeking decriminalisation of gay sex.

Sept, 2004: The gay right activists file review petition.

Nov 3, 2004: The High Court dismisses the review plea.

Dec, 2004: Gay rights activists approach the Supreme Court of India against the order of the High Court.

Apr 3, 2006: The Supreme Court directs the High Court to reconsider the matter on merit and remands the case back to the High Court.

Oct 4, 2006: The High Court allows senior BJP leader B P Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.

Sept 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand between the Home and Health ministries over decriminalisation of homosexuality. The Court refuses the plea and final argument in the case begins.

Sep 25, 2008: The gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.

Sep 26, 2008: In view of contradictory affidavits filed by Health and Home ministries, the High Court pulls up the Centre for speaking in two voices on the homosexuality law.

Sep 26, 2008: Centre says that gay sex is immmoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.

Oct 15, 2008: The High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

Nov, 2008: Government in its written submission before the High Court says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.

Nov 7, 2008: High Court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.

July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting adults. On 2 Jul 2009, a bench of the Delhi High Court, comprising Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, delivered a 105-page judgement, overturning the 150 year old section, and legalised consensual homosexual activities between adults.  The following are some excerpts from the judgement:

“The provision of Section 377 runs counter to the Constitutional values and the notion of human dignity which is considered to be cornerstone of our constitution.

“Section 377 in its application to sexual act of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited grounds of sex.

“We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15.“We declare Section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the ConstitutionThe court clarified that “by adults we mean everyone who is 18 years of age or above…..and.the provision of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors”.
The court further said that this judgement will hold till Parliament chooses to amend the law.

The High Court made it clear that this “ judgement will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality.”

The Judges pulled up the government for its stand that judiciary should refrain from interfering on the issue as it pertains to legislative function coming under the ambit of Parliament.

“We are constrained to observe that the submission of Additional Solicitor General reflect rather poorly on his understanding of the Constitutional scheme.

“The judiciary is constituted as the ultimate interpretor of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government,” the bench said.

“A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take it out of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problem,” the Bench said quoting a Supreme Court judgement.

It should be noted that during the hearings, there were contradictions within the the Government – the Home Ministry had opposed scrapping of Section 377 while Ministry of Health came out openly in support of the gay rights activists.