S ection 377 of the Indian Penal Code

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Chapter XVI, Section 377 of the Indian Penal Code dating back to 1861,
[1]
introduced during
the British rule of India, criminalises sexual activities "against the order of nature", including
homosexual acts.
The section was declared unconstitutional with respect to sex between consenting adults by
the High Court of Delhi on 2 July 2009. That judgement was overturned by the Supreme
Court of India on 11 December 2013, with the Court holding that amending or repealing
Section 377 should be a matter left to Parliament, not the judiciary.
Contents
[hide]
1 History
2 Public perception
o 2.1 Support
o 2.2 Opposition and criticism
3 Legal battle
o 3.1 2013 judgement
4 References
5 External links
History[edit]
377. Unnatural offences: 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.
[2][3]

The ambit of Section 377, which was devised to criminalize and prevent homosexual
sex
[citation needed]
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.
Public perception[edit]
Main article: Homosexuality in India
Support[edit]
In 2008 Additional Solicitor General PP Malhotra said:
Homosexuality is a social vice and the state has the power to contain it. [Decriminalising
homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS and
HIV would further spread and harm the people. It would lead to a big health hazard and
degrade moral values of society." A view similarly shared by the Home Ministry.
[4]

The 11 December 2013 judgement of the Supreme Court, upholding Section 377 was met
with support from religious leaders. The Daily News and Analysis called it "the univocal
unity of religious leaders in expressing their homophobic attitude. Usually divisive and
almost always seen tearing down each others religious beliefs, leaders across sections came
forward in decrying homosexuality and expressing their solidarity with the judgment."
[5]
The
article added that Baba Ramdev India's well-known yoga guru, after praying that journalists
not "turn homosexual", stated he could cure homosexuality through yoga and called it "a bad
addiction. The Vishwa Hindu Parishad's vice-president Om Prakash Singhal said, This is a
right decision, we welcome it. Homosexuality is against Indian culture, against nature and
against science. We are regressing, going back to when we were almost like animals. The SC
had protected our culture. The article states that Singhal further went to dismiss HIV/AIDS
concerns within the LGBT community as, It is understood that when you try to suppress one
anomaly, there will be a break-out of a few more. Maulana Madni of the Jamiat Ulema is
stated in the article as echoing similar homophobia in stating that Homosexuality is a crime
according to scriptures and is unnatural. People cannot consider themselves to be exclusive of
a society... In a society, a family is made up of a man and a woman, not a woman and a
woman, or a man and a man. If these same sex couples adopt children, the child will grow up
with a skewed version of a family. Society will disintegrate. If we are to look at countries in
the West who have allowed same-sex marriages, you will find the mental tensions they suffer
-+from. Rabbi Ezekiel Issac Malekar, honorary secretary of the Judah Hyam Synagogue, in
upholding the judgment was also quoted as saying In Judaism, our scriptures do not permit
homosexuality." Reverend Paul Swarup of the Cathedral Church of the Redemption in Delhi
in stating his views on what he believes to be the unnaturalness of homosexuality, stated
Spiritually, human sexual relations are identified as those shared by a man and a woman.
The Supreme Courts view is an endorsement of our scriptures.
Opposition and criticism[edit]
Convictions are extremely rare, and in the last twenty years there have been no convictions
for homosexual relations in India. However, Human Rights Watch argues that the law has
been used to harass HIV/AIDS prevention efforts, as well as sex workers, homosexuals, and
other groups at risk of the disease.
[6]
The People's Union for Civil Liberties has published two
reports of the rights violations faced by sexual minorities
[7]
and, in particular, transsexuals in
India.
[8]

In 2006 it came under criticism from 100 Indian literary figures,
[9]
most prominently Vikram
Seth. The law subsequently came in for criticism from several ministers, most prominently
Anbumani Ramadoss
[10]
and Oscar Fernandes.
[11]
In 2008, a judge of the Bombay High Court
also called for the scrapping of the law.
[12]

Legal battle[edit]


The judgement of the High Court of Delhi of 2 July 2009 declared portions of section 377
unconstitutional w.r.t consensual sex among adults
Main article: Naz Foundation v. Govt. of NCT of Delhi
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. A 1996 article in Economic and Political Weekly by Vimal
Balasubrahmanyan titled 'Gay Rights In India' chronicles this early history. As the case
prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India)
Trust, an activist group, which filed a public interest litigation in the Delhi High Court in
2001, seeking legalisation of homosexual intercourse between consenting adults.
[13]
The Naz
Foundation worked with a legal team from the Lawyers Collective to engage in court.
[14]
In
2003, the Delhi High Court refused to consider a petition regarding the legality of the law,
saying that the petitioners, had no locus standi in the matter. Since nobody had been
prosecuted in the recent past under this section it seemed unlikely that the section would be
struck down as illegal by the Delhi High Court in the absence of a petitioner with standing.
Naz Foundation appealed to the Supreme Court against the decision of the High Court to
dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation
had the standing to file a PIL in this case and sent the case back to the Delhi High Court to
reconsider it on merit.
[15]
Subsequently, there was a significant intervention in the case by a
Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against
377', which supported the demand to 'read down' section 377 to exclude adult consensual sex
from within its purview.
[16]

In May 2008, the case came up for hearing in the Delhi High Court, but the Government was
undecided on its position, with The Ministry of Home Affairs maintaining a contradictory
position to that of The Ministry of Health on the issue of enforcement of Section 377 with
respect to homosexuality.
[17]
On 7 November 2008, the seven-year-old petition finished
hearings. The Indian Health Ministry supported this petition, while the Home Ministry
opposed such a move.
[18]
On 12 June 2009, India's new law minister Veerappa Moily agreed
that Section 377 might be outdated.
[19]

Eventually, in a historic judgement delivered on 2 Jul 2009, Delhi High Court overturned the
150 year old section,
[20]
legalising consensual homosexual activities between adults.
[21]
The
essence of the section goes against the fundamental right of human citizens, stated the high
court while striking it down. 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 of the Indian constitution, which states that every citizen has equal opportunity of
life and is equal before law.
The two judge bench went on to hold that:

If there is one constitutional tenet that can be said to be underlying theme of the
Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian
Constitution reflects this value deeply ingrained in Indian society, nurtured over
several generations. The inclusiveness that Indian society traditionally displayed,
literally in every aspect of life, is manifest in recognising a role in society for
everyone. Those perceived by the majority as "deviants' or 'different' are not on
that score excluded or ostracised.
Where society can display inclusiveness and understanding, such persons can be
assured of a life of dignity and non-discrimination. This was the 'spirit behind the
Resolution' of which Nehru spoke so passionately. In our view, Indian
Constitutional law does not permit the statutory criminal law to be held captive
by the popular misconceptions of who the LGBTs are. It cannot be forgotten that
discrimination is antithesis of equality and that it is the recognition of equality
which will foster the dignity of every individual.
[22]


The court stated that the judgement would hold until Parliament chose to amend the law.
However, the judgement keeps intact the provisions of Section 377 insofar as it applies to
non-consensual non-vaginal intercourse and intercourse with minors.
[20]

A batch of appeals were filed with the Supreme Court, challenging the Delhi High Court
judgment. On 27 March 2012, the Supreme Court reserved verdict on these.
[23]
After initially
opposing the judgment, the Attorney General G. E. Vahanvati decided not to file any appeal
against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian Penal
Code] criminalises consensual sexual acts of adults in private [before it was struck down by
the High Court] was imposed upon Indian society due to the moral views of the British
rulers."
[23]

2013 judgement[edit]


The judgement of the Supreme Court of India of 11 December 2013 did not find enough
reason for portions of section 377 to be declared unconstitutional and overturned the Delhi
High Court judgement
On 11 December 2013, the Supreme Court of India ruled homosexuality to be a criminal
offence setting aside the 2009 judgement given by the Delhi High Court. The bench of
justices G. S. Singhvi and S. J. Mukhopadhaya however noted that the parliaments should
debate and decide on the matter. A bench of justices G S Singhvi and S J Mukhopadhaya
upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a
punishable offence

An angry and desperate Indian Embassy in Washington DC put out a statement this evening that
did not respond to any of the serious charges leveled against NYC Indian Consulates
Deputy Consul General Devyani Khobragde by U.S. Attorney for the Southern District of New
York Preet Bharara.
Devyani Khobragade was arrested in New York City Thursday morning and charged with Visa
fraud and making false statements to the U.S. Embassy in India about wages to be paid to her
maid.
The charges against Devyani are related to the A3 Visa application of her Indian maid Sangeeta
Richard.
Devyani was released later in the evening, presumably with some restrictions.
India Silent on Charges
It is very telling that the Indian Embassys statement had nothing to say about the serious
charges leveled against Devyani by U.S. Attorney Preet Bharara.
Its very rare that an Indian diplomat or any diplomat for that matter gets arrested considering that
diplomats have diplomatic immunity. In Devyanis case, U.S. officials refused to acknowledge her
diplomatic immunity in the alleged Visa fraud and false statements matter.
Bharara did not mince words while announcing Devyanis arrest on Thursday:
Foreign nationals brought to the United States to serve as domestic workers are entitled to
the same protections against exploitation as those afforded to United States citizens. The false
statements and fraud alleged to have occurred here were designed to circumvent those
protections so that a visa would issue for a domestic worker who was promised far less than a
fair wage. This type of fraud on the United States and exploitation of an individual will not be
tolerated.
Following Devyanis arrest and subsequent release, the Indian Embassy in Washington DC
issued a statement:
The Embassy of India in Washington DC had immediately conveyed its strong concern to
the U.S. Government over the action taken against Dr Khobragade. The US side have been
urged to resolve the matter with due sensitivity, taking into account the existing Court case in
India that has already been brought to their attention by the Government of India, and the
Diplomatic status of the officer concerned.
India Smears Maid
Although silent on the serious charges against Devyani, Indian Embassy personnel in
Washington DC had no difficulty in tilting against Devyanis maid in their response to the
diplomats humiliating arrest on Thursday.
The folks at the Indian Embassy acknowledged that Devyani Khobragade had been arrested on
the basis of allegations raised by her former India-based domestic assistant Sangeeta Richard.
But Indian embassy personnel conveniently forgot that Sangeeta Richard worked for
Devyani Khobragade in New York City from late November 2012 through June 2013 and
described her as former India-based domestic assistant Sangeeta Richard.
Indian embassy officials are smearing the maid by charging that she had been absconding since
June this year but had nothing to say about the alleged fraud committed against Sangeeta
Richard by senior diplomat Devyani by not paying her the promised wages.
U.S. officials allege in court documents that although the maid was promised $4,500 per month
she was paid less than Rs 30,000 rupees per month, or $3.31 per hour (way below the minimum
wage in New York state).
It appears that either Devyani or the Indian government has been trying to muzzle the maid
Sangeeta Richard by filing a case against her in an Indian court.
Heres what the Indian Embassy had to say on the court case against the maid Sangeeta
Richard in India:
In this context the Delhi High Court had issued an-interim injunction in September to
restrain Ms Richard from instituting any actions or proceedings against Dr Khobragade outside
India on the terms or conditions of her employment.
The US Government had subsequently been requested to locate Ms Richard and facilitate
the service of an arrest warrant, issued by the Metropolitan Magistrate of the South District Court
in New Delhi under Sections 387, 420 and 120B of the Indian Penal Code.
Whether Devyani Khobragade is guilty or innocent will ultimately be determined in a U.S. court of
law.
But the Indian Embassy in Washington DC appears to be in a clumsy, desperate damage control
mode.
By the way, the Devyani Khobragade arrest is the third instance in the last three years involving
NYC Indian Consulate officials and their Indian maids.