Section 377 of our constitution, introduced with the Indian Penal Code way back in 1860, criminalises sexual acts “against the order of nature”. This Victorian-era statute was struck down by the Delhi High Court in 2009 in the famous Naz Foundation case, but the decision was overturned on appeal by the Supreme Court in 2013, which reasoned that the matter relating to LGBT rights and decriminalisation of homosexuality should be left to the legislature.
Tracing the roots
The Buggery Act of 1533
This Section was drafted by Thomas Macaulay around 1838 but was only brought into effect in 1860 in light of the Sepoy Mutiny (First War of Independence) 1857. This law in British India was modelled on the Buggery Act 1533 which was enacted under the reign of King Henry VIII. This law defined ‘buggery’ as an unnatural sexual act against the will of God and man. Thus, this criminalised anal penetration, bestiality and in a broader sense homosexuality.
- Offences against the Person Act 1861
In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, but also homosexuals. This Act is what is considered to be the inspiration for Section 377 of the Indian Penal Code. In years to come, this Act would be repealed by the British and replaced by the Offences against the Person Act 1861 and finally homosexuality was decriminalised by the Sexual Offences Act 1967. It is interesting to note that while the British government has now made same-sex marriage legal, the Indian government still follows this archaic law written in the 1830s and enacted in 1860.
- There is widespread support for the scrapping of Section 377 among the enlightened sections of Indian society, including eminent lawyers, jurists, renowned writers, political activists, journalists, doctors, actors, producers, directors, teachers, students etc. The Supreme Court judgment overturning the Naz Foundation case has come in for heavy criticism as it runs against the history of the apex court acting as a champion of the underprivileged.
What was the Naz Foundation Case?
- In Naz Foundation vs Govt. of NCT of Delhi, the issue before the two-judge bench of the Delhi High Court was whether Section 377 of the Constitution violates the fundamental rights of the LGBT community and if so, should it be struck down as unconstitutional? And should homosexual acts between consenting adults be legalised?
- The bench of Justices Ajit Prakash Shah and Justice S. Muralidhar answered in the affirmative and read down Section 377 holding that it violated Articles 14, 15 and 21 of the constitution, which guaranteed the right to equality before law, right not to be discriminated on the grounds of sex and right to life and liberty respectively.
The Appeal – Suresh Kumar Kaushal vs. Naz Foundation
In their appeal in the Supreme Court, the petitioners argued that Section 377 does not classify any particular group or gender and hence is not in violation of Articles 14, 15 and 21 of the Constitution. They also argued that if the High Court judgment was approved by the Supreme Court, “India’s social structure and the institution of marriage will be detrimentally affected and it would cause young people to be tempted towards homosexual activities”. They finally submitted that the Supreme Court could not legislate and it should leave the matter of legality or illegality of Section 377 to the Parliament.
Sadly, the Supreme Court accepted the arguments advanced by the appellants and observed that Section 377 is the only law that criminalises paedophilia and crimes like sexual abuse and assault. It also reasoned that if Section 377 was a pre-constitutional statute and if it were in violation of any fundamental right, the framers of the constitution would not have included it in the first place. Based on such observations, the apex court overturned the decision of the Delhi High Court.
The decision by the Supreme Court was met with heavy criticism and a general outcry from the intelligentsia but was welcomed by many religious groups. However, some religious organisations have begun favouring decriminalisation of homosexuality keeping in view the worldwide trend of acceptance for the practice.
Shashi Tharoor’s Private Member Bill
Since this decision was made just before the 2014 General Elections, it was no surprise that no party was willing to introduce a bill on such a controversial topic. Since the NDA government has taken power, there has been no government bills addressing this issue. However, Shashi Tharoor the Member of Parliament from Thiruvananthapuram and the former Under-Secretary-General of the United Nations used the social media to raise awareness, sign petitions regarding the matter, and finally introduced a private bill. This bill aimed at allowing adults have consensual non-vaginal sexual intercourse, thus effectively decriminalising homosexuality. However, it was disappointing to see that this bill was almost immediately rejected without it even being introduced.