Introduction
Introduced during the British rule in India in 1860, Chapter XVI, Section 377 of the Indian Penal Code (IPC) terms sexual activities against the order of nature as illegal. It states that a person indulging voluntarily in carnal intercourse against the order of nature with any man, woman or animal would be punishable for life imprisonment or with imprisonment of either description for term extendable up to 10 years, and shall also be liable to fine.
Any sexual conjugation that involves penile insertion, would come under the ambit of Section 377. Thus, it would count even the consensual heterosexual acts such as anal penetration and fellatio as punishable under this section.
The History
In 1991, a movement to abolish Section 377 was triggered by AIDS Bhedbhav Virodhi Andolan. They raised the problems associated with Section 377 in their historic publication, Less than Gay: A Citizen’s Report, and demanded its withdrawal.
The case proceeded at a slow speed and extended over the years. The Naz Foundation (India) Trust, an activist group, again raised the issue in the next decade. In 2001, a public interest litigation (PIL) was filed by the trust in the Delhi High Court, which demanded that consensual homosexual intercourse between adults should be legalised.
Delhi High Court Historical Judgement The Delhi High Court passed a historic verdict on 2nd July 2009 that repealed the 150-year-old section and thus legalised homosexual activities between consenting adults. The Court justified its decision to repeal Section 377 by declaring the essence of it going against the fundamental rights granted to the citizens in the Indian Constitution.
A bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar passed a 105- page judgement stating that Section 377 of the IPC unless amended, would lead to violation of Article 14, 15 and 21 of the Indian Constitution. However, the court ruled out that penile non-vaginal sex and non-consensual penile non-vaginal sex involving minors will continue to fall under the ambit of Section 377.
Another argument was made that Article 21 includes the right to live with dignity and the right to privacy and Section 377 IPC intrude upon a person’s dignity by criminalising him or her solely on the basis of his or her sexual orientation and thus violates Article 21 of the Constitution.
Supreme Court’s Judgement of December 2013
Nevertheless, the historic judgement of the Delhi High Court was overturned by the Supreme Court on 11 December 2013 in Suresh Kumar Koushal vs. Naz Foundation case. The apex court reinstated Section 377 with full force.
The Supreme Court further issued instructions to the parliament to deliberate and decide on the issue of Section 377 over its repealing.
The Union Government responded by submitting a review petition on 21 December 2013 putting forward that the rights under Article 14, 15 and 21 of the Constitution are violated by the judgement.
Moreover, a review petition was submitted by the Naz Foundation against the judgement issued by the Supreme Court on Section 377.
The apex court in response on 28 January 2014, dismissed the review petitions claiming that Section 377 is constitutional and holds for sexual acts regardless of age or consent of the parties involved.
New Thrust
The Supreme Court on 15 April 2015, acknowledged the right to identity of transgender persons in National Legal Services Authority (NALSA) vs. Union of India case. The apex court also particularly took into notice of exploitation of Section 377 for the harassment and physical abuse of transgender persons.
In response to the NALSA judgement, DMK leader Tiruchi Siva, a member of the parliament, initiated a private member’s bill called the Rights of Transgender Persons Bill, 2014 in the parliament. Though the bill was approved in the Rajya Sabha, it is still pending in the Lok Sabha.
Both the Supreme Court and the parliament are determined to protect the rights of all citizens including transgender persons that reflected in the NALSA decision and the Rights of Transgender Persons Bill, 2014. In 2000, the Law Commission of India, another state institution, in its 172nd Report recommended towards repealing of Section 377.
Review of Section 377
The Naz Foundation filed the final hearing of the curative petition on 2 February 2016, and others came to the Supreme Court for hearing.
A three-member bench led by the Chief Justice of India, T. S. Thakur, ordered a fresh review of all the submitted eight curative petitions by a 5-member constitutional bench for an in-depth comprehensive hearing.
The open court hearing, resulted after two years of filing the batch of eight curative petitions, which included the parents, civil society, scientific and lesbian, gay, bisexual, and transgender (LGBT) rights organisations as the petitioners, in March 2014 against the 28 January 2014 apex court verdict. The final hearing on repealing of Section 377 is expected by September 2017.
Repealing Section 377
Various institutions and organisations expressed concerns against the repealing of Section 377 citing counter arguments as follows
• Apostolic Churches Alliance opposed the petitioners arguing giving an account of the Bible that homosexuality was an abomination in the Bible.
• It is further argued that decriminalisation of homosexuality would cause the Prevention of Immoral Trafficking Act, 1956 baseless.
• Repealing Section 377 would result in further spread of sexually transmitted diseases like AIDS that would do more harm to the people.
• Its consequences would be detrimental to the society causing severe health hazards and degradations of morality in the society.
Conclusion
Section 377 poses a serious threat to the dignity and self-esteem of LGBT persons who are consistently affected by the Act, suffering for a peaceful indulgence in terms of sexual orientation and family life across the country. Hence, all the stakeholders need to work in coordination to arrive at a solution that protects the dignity and rights of LGBT.
Moreover, amendment is also required in Section 375 of the IPC in agreement with the Justice Verma Committee recommendations to extend protection from rape to all persons irrespective of their gender or sexuality.