Jaypee Institute of Information

Technology, Noida

Odd Sem 2021

Indian Constitution and

Traditional Knowledge

Repealing Section 377

Submitted by: Submitted to: -

Abhinav Sharma 9919103107 F4 Ms. Priyanka Chhaparia

Shreyash Rautela 9919103110 F4
Introduction
The Section 377 of the Indian Penal Code (IPC) is an act that criminalises homosexuality and
was introduced in the ear 1861 during the British rule of India. referred to 'unnatural offences'
and says whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with imprisonment for life.
However, in a historic verdict, the Supreme Court of India on September 6, 2018,
decriminalised the Section 377 of the IPC and allowed gay sex among consenting adults in
private. The SC ruled that consensual adult gay sex is not a crime saying sexual orientation is
natural and people have no control over it.

History
Section 377 of the Indian Penal Code is part of the Indian Penal Code introduced in 1861
during the British rule in India. Similar to the Buggery Act of 1533, it legalized “unnatural”
sexual activities.
Parts of the section were initially dismissed as unconstitutional regarding homosexuality by
the Delhi High Court in July 2009. That decision was overturned by the Supreme Court of
India (SC) on December 11, 2013 by Suresh Kumar Koushal vs. Naz Foundation. The Court
held that the amendment or repeal of section 377 should be a matter for the benefit of
Parliament, not judges. On February 6, 2016, a three-member bench of the Court reviewed
the medical applications filed by the Naz Foundation and others, and decided to review the
five-member constitutional bench.
On August 24, 2017, the Supreme Court upheld the right to privacy as a fundamental right
under the Constitution in Puttaswamy's landmark decision. The Court also called for equality
and condemned discrimination, saying that the protection of sexual orientation is fundamental
to the fundamental rights and that the rights of LGBT people are real and fundamental to their
values. This decision is believed to be unconstitutional in section 377.
In January 2018, the Supreme Court agreed to hear an application to reconsider the 2013 Naz
Foundation decision. On 6 September 2018, the Court issued a unanimous decision in the
case of Navtej Singh Johar v. The Union of India states that Section 377 was unconstitutional
"to the extent that it accuses consensual sexual activity between adults of the same sex". The
verdict was handed down by a five-judge panel including former Indian Chief Justice Dipak
Misra, Judges R. F. Nariman, D. Y. Chandrachud, A. M. Khanwilkar and Indu Malhotra.
Navtej Singh Johar & Ors. v. Union of India thr. Secretary The Department of Justice and
Justice is the landmark decision of the Supreme Court of India in 2018 that removes all
sexual intercourse between adults, including the same sex.
The court was asked to rule on the constitutionality of Section 377 of the Indian Penal Code,
a colonial era law, which, among other things, defined homosexual acts as a crime "as an
unnatural crime". Although the law makes it illegal for both anal sex and oral sex, which
includes between couples of the opposite sex, to a greater extent, it has strongly influenced
same-sex relationships. On September 6, 2018, the court unanimously declared that the law is
unconstitutional "to the extent that it constitutes an act of consensual sexual activity between
adults of the same sex". The decision was hailed as a landmark decision for LGBT rights in
India, with campaigners waiting outside the court rejoicing after the ruling.
Section 377 provisions relating to sex with children, illicit sexual acts such as rape, and
bestiality still apply.

Support for Article 377

Over the years, lot of political leaders, parties, and the public have shown support for
Arcticle377. People in India have considered homosexuality an unnatural offence and disease
and political parties have considered it their duty to contain it. They have believed that
decimalizing homosexuality may create a breach of the peace as said by Additional Solicitor
General PP Malhotra in 2008. Over the year prominent leaders like Rajnath Singh, Yogi
Adityanath, Ram Gopal Yadav, Subramanian Swamy were among the ones to oppose
homosexuality and support Article 377.

On the other hand, leader like Former Former Finance Minister and BJP member Arun
Jaitley and then INC president (2013) Rahul Gandhi supported the removal of article 377
under “Right to choose”.
Apart from political parties and leaders, some recognized people are also demanding the
removal of 377. E.g. In 2014, Akkai Padmashali led protests and demonstrations through her
campaign “Ondede” which eventually led to the removal of Section 377.

Opposition Of Article 377

The Ministry of Health and Family Welfare opposed the upholding of Section 377, stating
that it would hinder anti-HIV/AIDS efforts.
In 2006, Section 377 came under criticism from 100 Indian literary figures, most prominently
Vikram Seth. The law subsequently drew even more criticism from several ministers, most
prominently Anbumani Ramadoss and Oscar Fernandes. In 2008, a judge of the Bombay
High Court also called for the scrapping of the law.
The United Nations also said that the ban violated international law. United Nations human
rights chief Navi Pillay stated that "Criminalising private, consensual same-sex sexual
conduct violates the rights to privacy and to non-discrimination enshrined in the International
Covenant on Civil and Political Rights, which India has ratified", and that the decision
"represents a significant step backwards for India and a blow for human rights.", voicing
hope that the Court might exercise its review procedure.
Judiciary Actions

2009 Naz Foundation vs Govt. of NCT of Delhi

On 2 July 2009, Delhi High Court overturned the 150-year-old section 377 thereby legalising
consensual relations with same-sex. In a 105-page judgement, it is said that Section 377 of
IPC violated Article 14 of Indian Constitution, which states that every person is equal before
law.

2013 Suresh Kumar Koushal vs Naz Foundation

In 2013, Suresh Kumar Koushal with 2-judge Supreme Court bench consisting of G. S.
Singhvi and S. J. Mukhopadhaya overturned the verdict of 2009 case (Naz Foundation vs
Govt. of NCT of Delhi) of Delhi High Court and reinstated Section 377.

2016 Naz Foundation Curative Petition

On 2 February 2016, three-member bench headed by the Chief Justice of India T. S. Thakur
said that 5-judge bench will review all the 8 curative petitions.

2017 Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India and Ors
On 24 August 2017, 9-judge bench clearly expressed their disagreement with 2013 Suresh
Koushal Judgement, thus laying the ground-work for Section 377 to be read down and the
restoration of the 2009 Judgement of the Delhi High Court, i.e. decriminalizing
homosexuality.

2018 Navtej Singh Johar v. Union of India

On 6 September 2018, 5-judge bench announced the verdict of restoring its own 2009
judgement i.e. legalising homosexuality. In its ruling, the Supreme Court deemed the 150-
year-old Section 377 - "irrational, arbitrary and incomprehensible."

Importance and Impact

Section 377 is no longer available for use, to foster, facilitate, or perpetuate, an atmosphere
encouraging human rights violations of a certain kind, and will put an end to the
discrimination that many have faced because of their sexual orientation or gender identity
for so many years now. India is now part of a proud league of nations that recognizes true
freedom of gender identity and sexual expression.

Section 377 was introduced in IPC encouraging western notions of morality, based on
Abrahamic ideologies. At the time of its introduction, some consideration was given to a
contradictory morality that existed in the subcontinent, which acknowledged and recognized
homosexuality, and did not criminalize it. Even as the UK and other jurisdictions rejected it
for a more reasoned position of homosexuality being nothing but a variation in human
nature, Indian governments and other public institutions, over the decades, have tried to
conserve antiquarian ideas. There was no intelligible justification for this law to remain.
This decision has thankfully undone the artificial construct that was Section 377, and in
doing so, it also recognizes the victory of constitutional morality over public morality.
Throughout this process of law making, we should not lose sight of the fact that laws like the
IPC are neither Indian nor God-given. Laws like these are not immutable. And in fact, they
lose value if they are not rejected, rewritten, or amended, to suit changing social, cultural,
and economic needs.
Beyond decriminalizing homosexuality, we need to think about how persons, who identify
themselves as being outside the conventional binary, can be integrated into society without
using their gender or sexuality as the foci of such integration. So, for example, we need to
start thinking about how social constructs like marriage or parenting can be re-structured.
We need to redesign teaching tools to embrace these differences. We need to restructure
institutions like schools and workplaces to make them all inclusive.

References
Section 377: Impact will be felt beyond India | India News - Times of India (indiatimes.com)
Life after Section 377 (livemint.com)
https://en.wikipedia.org/wiki/Section_377
https://en.wikipedia.org/wiki/Homosexuality_in_India