CRITICAL ANALYSIS OF SECTION 377 OF IPC

Contents
ABSTRACT .................................................................................................................................... 2
KEYWORDS .................................................................................................................................. 2
(1). INTRODUCTION .................................................................................................................... 3
(2) HISTORICAL PROOF OF HOMOSEXUALITY .................................................................. 3
(2.1).INTERNATIONAL HISTORY OF LAW ......................................................................... 4
(2.2) HISTORY OF LAW IN INDIA ....................................................................................... 4
(3) SECTION 377,IPC .................................................................................................................... 5
(3.1) NATURE OF SECTION .................................................................................................... 5
(4). CONSTITUTIONAL VALIDITY OF SEC 377,IPC .............................................................. 5
(5). ROLE OF JUDICIARY WITH REGARDS TO DECRIMINALIZING SEC.377,IPC .......... 6
(5.1) NAZ FOUNDATION v. GOVERNMENT OF NCT OF DELHI (2009).......................... 6
(5.2) SURESH KUMAR KOUSHAL & Anr. V. NAZ FOUNDATION & Ors. (2013) ......... 6
(5.3) NATIONAL LEGAL SERVICE AUTHORITY v. UNION OF INDIA (2014) .............. 7
(5.4) NAVTEJ SINGH JOHAR & Ors. V. UNION OF INDIA (2018) .................................... 7
(6) THE LITMUS TEST FOR THE SURVIVAL OF SECTION 377 ........................................... 8
(6.1) ARTICLE 14 ...................................................................................................................... 8
(6.2) ARTICLE 19 ...................................................................................................................... 9
(6.3) ARTICLE 21 ...................................................................................................................... 9
(7). IMPACT OF DECRIMINALISING HOMOSEXUALITY .................................................... 9
(8). LGBT RIGHTS IN INDIA : CURRENT STATUS............................................................... 10
(9). THE WAY FORWARD......................................................................................................... 10
(10). CONCLUSION .................................................................................................................... 12
REFERENCE ................................................................................................................................ 13
ABSTRACT

This research deals with the Decriminalisation of Sec. 377. In light of the recent Supreme Court
ruling on Section 377 of IPC, this article explores the concept of homosexuality and gives an
idea about the arbitrary, irrational colonial era law, the penal punishment given and the numerous
constitutional rights that have been encroached. In 1860, Section 377 was introduced in the
constitution by the British Government which declared homosexual intercourse illegal. As a
result, the law considers the individuals of the LGBT community criminal. The section 377
(Unnatural offences) has been decriminalized in case of Navtej Singh Johar & Ors. v. Union of
India on September 06 2018 by a five-judge Constitution bench headed by Chief Justice Dipak
Mishra termed the part of Section 377 of the Indian Penal Code which criminalises unnatural sex
as irrational, indefensible and manifestly arbitrary. It also said it is violation of right to equality.
This law decriminalised only the inter course between men and women. But it does not
decriminalise the inter course with animals and children. The present study is an empirical study
done by survey method. This theoretical case study focuses on the elaborative discussion on the
pathetic social status of homosexuals from 1991 to 2018 due to article 377 which makes it clear
why the read down of article 377 is needed for the sake of the Right to Privacy given by the
Constitution of India.

KEYWORDS

Homesexuality, Decriminalise, LGBTQ Community, Sec.377, IPC

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(1). INTRODUCTION

India is a country of diversity in culture, heritage, language, race, and religion with the majority
of Hindus (79.8%) and some proportion of Muslims (14.2%), Christians (2.3%), Sikhs (1.72%),
Buddhists (0.7%) and Jains (0.37%) as per the census of 2011. But all these conclude in one
place, i.e., religious prejudices, and this makes homosexuality illegal for more than 100
years.Decriminalisation means an act which was considered as a crime or an offence previously
and later it is not considered as a crime or an offence. Decriminalisation describes the state
of reducing or lessening the punishments and penalties of a crime.It was referred to1
the 'unnatural offences'3 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.
The issue regarding the Section 377 was first raised initially by an NGO, Naz Foundation,
and AIDS Bedhbhav Virodh Andolan, in the Delhi high court in 2001. Both the petitions
were dismissed in the court initially. Sec 377 was presented by Lord Macaulay in 1860 as a
piece of the Indian Penal Code. The absence of an assent based qualification in the offense
has made gay sex synonymous to assault and compared homosexuality with sexual perversity.Ho
wever, 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
Supreme Court ruled that consensual adult gay sex is not a crime saying sexual orientation is
natural and people have no control over it. Sexual orientation is an Essential attribute
of the identity of LGBT persons. Sexual orientations include gay, lesbian, straight, bisexual, and
asexual. Sexual orientation of the person is an extension attribute of privacy its protection lies at
the core of fundamental rights can Guaranteed by articles 14, 15, and 218.The Right to Privacy
means not only to be left alone but it is a broad –based concept simply means extends to the right
to make a fundamental personal choices including those relating to intimate sexual contact
without unwarranted state interference. So obviously, all these are self-contradictory, and,
undoubtedly, Section 377 needs to be abolished. However, the legal battle for the existence of
LGBT was going for about 20 years long. On 6th September 2018, the Supreme Court of India
Navtej Singh Johar v. Union of India gave the verdict in favor of homosexuals by legalizing
consensual intercourse between adults, irrespective of sex. But the path was not easy; there were
many obstacles, which will be explained in this article.

(2) HISTORICAL PROOF OF HOMOSEXUALITY

In this section we will look at the history of this law internationally and in India. We will not
focus on laws that have the exact same wording of Section 377, but will look more generally at
laws that criminalise same sex sexual acts and or deny basic rights to same sex desiring or
gender 216 Queer Liberation transgressive persons. After this, we will move on to the history of
this law in India. It is important to understand the international perspective for many reasons.
Thus, if we were to understand fully the colonial history of Section 377 as it is in India, it is
important to know about the various other countries which share the history of colonisation with
1
http://clpr.org.in

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us. Similarly, we also need to understand this law in the countries that were the colonisers in the
past. Second, many changes in these laws were subject, not just to domestic pressures, but also to
international pressures.

(2.1).INTERNATIONAL HISTORY OF LAW

One of the earliest legislations that criminalise sexual acts that were against sodomy which was
introduced by Henary viii known as the Buggery Act,1533.In June 2003, the U.S. Supreme Court
ruling in Lawrence v. Texas said that non-commercial sexual activity between consenting adults
cannot be criminalised in the name of morality. Such criminalising, it was said was
unconstitutional as it intrudes in people’s liberty and privacy.

Some parts of Europe, North America, Latin America and South America have abolished
sodomy laws with the exception of a sizeable number of countries.Nepal has made a giant leap
recently ensuring a Supreme Court judgment which has directed the government to scrap all laws
that discriminate against same sex desiring and gender transgressive people.

However, in some countries such as Iran, Mauritania, Pakistan, Saudi-Arabia, Sudan, United
Arab Emirates, Yemen and some parts of Nigeria and Somalia, and the Chechen Republic in
Russia, the act is punishable by death.

Last but not the least, it is important to remember that most changes in these laws worldwide,
which have reaffirmed the rights of same sex desiring and gender transgressive people, happened
world over not earlier than the late 1980s, except for a few exceptions such as the Wolfenden
Report.

(2.2) HISTORY OF LAW IN INDIA

The first ever challenge in court to Section 377 was filed by the Aids Bhedbhav Virodhi Andolan
in 1994. This challenge in the Delhi high court was made after there was a refusal to distribute
condoms in Tihar jail on the grounds that it will ‘spread’ homosexuality. This petition was based
on a ‘right to health’ argument, and was based on equality for all, prisoners or homosexuals
alike. On this basis, the petitiononers challenged the constitutional validity of Section 377.

In the meanwhile, discussions in larger groups on legal rights of LGBT people were held in
different spaces. A significant and widely attended national level discussion was held at a
workshop co-organised by Stree Sangam (now known as LABIA), Forum Against Oppression
of Women and India Centre for Human Rights and Law from Mumbai, and Counsel Club from
Kolkata. This workshop “Strategies for furthering gay, lesbian, bisexual rights in India” was
held in Mumbai in November 1997. Three aspects of legal rights were then seriously discussed
i.e. decriminalization, antidiscrimination legislation and domestic partnerships.

In 2000, the 172nd Law Commission Report recommended deletion of Section 377. In 2001, the
offices of Naz Foundation India and the Bharosa trust were raided and four activists were
arrested under charges of possessing ‘indecent material’ while what they possessed were
pamphlets and other material on HIV/AIDS and condoms. They were also charged under Section

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377, a charge that could not be corroborated. They were afterwards released. But this incident
sowed the seeds for yet another challenge of Section 377, this time by Naz Foundation.2

(3) SECTION 377,IPC

As it has been already stated that Section 377 of the Indian Penal Code contains provisions
relating to unnatural offences. It was considered one of the most ‘draconian’ provisions in the
Indian legal system back in the time when sexual intercourse between individuals of the same
sex was also considered a criminal activity.

According to Sec.377 - whoever voluntarily engages in carnal intercourse against the order of
nature with any man, woman, or animal shall be punished with life imprisonment or
imprisonment of either description for a term not exceeding ten years, and shall also be charged
with a fine.

Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the

offence described in this section.”3

(3.1) NATURE OF SECTION

Section 377 is considered a serious offence hence, it is cognizable and non-bailable Offence in
nature. It can be tried in the court of a magistrate of first class.

(4). CONSTITUTIONAL VALIDITY OF SEC 377,IPC

The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860,
which criminalized 'carnal intercourse against the order of nature', was unconstitutional in so far
as it criminalized consensual sexual conduct between adults of the same sex.

2
http://blog.ipladers.in
3
http://www.indiacode.nic.in

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(5). ROLE OF JUDICIARY WITH REGARDS TO DECRIMINALIZING SEC.377,IPC

(5.1) NAZ FOUNDATION v. GOVERNMENT OF NCT OF DELHI (2009)

FACTS OF THE CASE

This case began with the filing of a writ petition in the Delhi High Court by Naz Foundation, a
Non-Governmental Organisation (NGO) that works closely with HIV/AIDS patients. They
claimed that Section 377 of the IPC was unconstitutional and hence prayed that the Court
decriminalise the same on grounds of being violation of human rights. The Naz Foundation
argued in Court that this Section violates the fundamental rights guaranteed to Indian citizens
under Articles 14, 15, 19, and 21 of the Indian Constitution.4

ISSUE INVOLVED

whether Section 377 was subject to decriminalisation on the grounds that it is violative of
Articles 14, 15, 19, and 21 of the Indian Constitution.

JUDGEMENT OF THE CASE

The Delhi High Court issued a ground-breaking judgement with a very liberal approach. The
Court also noted that this law infringed upon the privacy of two consenting adults, which is an
essential part of the right to life under Article 21. The Honourable Delhi High Court also ruled
that categorising people based on sex violates another basic fundamental right, namely Article 14
of the Constitution, which provides that everyone, simply by virtue of being human, have the
same human rights and equal access to them.

The Court also struck down portions of Section 377 of the IPC, but not the entire Section. The
Court found that a portion of this Section violated fundamental rights enshrined in Articles 14,
15, 19, and 21 and that non-consensual non-vaginal intercourse is still illegal, and bestiality is
still a crime. The Court further declared that this decision will remain in effect until Parliament
amends it.

(5.2) SURESH KUMAR KOUSHAL & Anr. V. NAZ FOUNDATION & Ors. (2013)

Facts of the case

In this case the decision of Naz Foundation Case was appealed to the supreme court on the
ground that sec.377 harmed the LGBT community, particularly homosexual men. The Appellant
contended that the court should not take the task of legislation which should must be left to
Parliament. The question is that whether a law is moral or immoral should be decided by
Parliament.
4
Naz Foundation v. Government of NCT Delhi,11 Dec. 2013,SCC:Civil Appeal No. 10972 of 2013

[6]
DECISION OF THE COURT

The Court overturned the Delhi High Court’s decision by saying that Sec.377 does not raise the
risk of arbitrary enforcement against specific groups by giving reasoning that law only
criminalises sexual acts ‘against the order of nature,’ not acts in the ordinary course. Lastly, the
Court concluded that Sec. 377“does not suffer from the vice of unconstitutionality.” Hence,
decision of High Court overturned.5

(5.3) NATIONAL LEGAL SERVICE AUTHORITY v. UNION OF INDIA (2014)

Facts of the case

In this case two writs were filed one by National Legal Service Authority and another by Poojya
Mata Nasib Kaur Ji Women Welfare Society which is a registered association to protect and
safeguard the rights of individuals that belong to the transgender community. The writ filed on
the ground of the violation of Article 14 & 21 of the Constitution of India. whether a person who
does not identify either as a male or a female has the right to be categorized in a “third gender”.

Issues involved

1. whether a person who does not identify either as a male or a female has the right to be
categorized in a “third gender”.

2. whether a person who is born male but has female orientation has the right to be identified as a
female.

Judgement of the Court.

In this case the Supreme Court , recognized transgender people as a third gender and affirmed
their fundamental rights under the Indian Constitution. The court held that transgender people
should be treated as socially and economically backward classes, and directed the government to
take steps to provide them with affirmative action, including reservations in education and
employment.Lastly, the court also recognized the right of transgender people to self-
identification, and held that gender identity is an integral part of a person’s identity and cannot
be determined solely by biological factors and also directed the government to provide
transgender people with legal recognition of their gender identity. 6

(5.4) NAVTEJ SINGH JOHAR & Ors. V. UNION OF INDIA (2018)

Facts of the case

5
Suresh Kumar Koushal & Anr. v.Naz Foundation & Ors.,11 December 2013
6
National Legal Service Authority v. Union of India,15 April 2014,SCC 438

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In this case a writ petition was filed by Navtej Singh Johar for seeking inclusion of the right to
sexual autonomy and right to choose the sexual partner within the ambit of right to life under
article 21. He also sought the declaration of section 377 of the I.P.C. as unconstitutional. He also
said that section 377 violates the right to privacy by putting the LGBT people in fear of
humiliation due to their lifestyle.

Issues of the case

1.Whether section 377 violates the right privacy under article 21?

2.Whether the rationale adopted in the Suresh Kaushal judgement was proper or not?

3.Whether section 377 violates articles 14 and 15 of the constitution?

Decision of the case

The Supreme Court held with respect to First issue that not granting privacy to LGBT
community merely because they are a minority is violative of the fundamental right to live with
dignity. Also, carnal intercourse between two people of same-sex in private is not derogatory to
public morality.

For the second issue, the court held that improper rationale was adopted in the Suresh Kaushal case
by giving rationale that if a certain section of the society is in minority, it has to be protected by the
fundamental rights. The court overruled Suresh Kaushal case.

For the third issue,the court opined that there is no reasoned classification between natural and
unnatural sexual acts. So,Section 377 also discriminates a segment of people for their sexual
orientation without any reasonable ground. So, it violates Articles 14 and 15 of the Constitution
of India.

Lastly,the 5-judge bench unanimously declared section 377 as unconstitutional insofar as it

criminalises consensual sexual acts of adults in private.7

(6) THE LITMUS TEST FOR THE SURVIVAL OF SECTION 377

(6.1) ARTICLE 14

As per Article 14 it states that equals must be treated equally. However, In the
Budhan Choudhary case, the Court observed that Article 14 forbids class legislation, but it
doesn’t rule out reasonable classification for legislation. So, To pass this test of classification, 2
conditions need to be fulfilled,

 The classification must distinguish between the grouped ones from the left out
(intelligible differentia); and

7
Navtej Singh Johar v. Union of India,2018 INSC 790

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  The object to be achieved by the statute in question must be rationally related to
intelligible differentia

(6.2) ARTICLE 19

In the Chintaman Rao case, the Court viewed that the phrase ‘reasonable restriction’, which
connotes the limitations imposed on an individual’s enjoyment of a right, should not be beyond
the public interest.

In the case of Shreya Singhal v. Union of India, the Supreme Court had struck down Section 66A
of the IT Act on the ground of the fundamental right to freedom of speech and expression
guaranteed in Article 19(1)(a) of the Indian Constitution. These sections were considered be
ambiguous, and vague, and seen as a way to curb freedom of speech and expression. In view of
the test, Section 377 IPC does not meet the proportionality criteria .So it is a violation of Article
15 which included the right to choice of a sexual partner.

However, if anyone engages in any sexual activity with an animal or engages in sexual activity
with another without consent, the said aspect of Section 377 IPC was decided to be still
constitutional, inviting penal liability.

(6.3) ARTICLE 21

Bhagwati J. observed in Francis Coralie Mullin’s case that the right to life includes the right to
carry on such activities as required as to constitute one’s self-expression. It was thereafter re-
affirmed by the Constitution bench decision in K.S. Puttaswamy & Anr. v. Union of India & Ors.
and Common Cause v. Union of India & Anr. Section 377, since it trims the personal liberty of
LGBT persons to engage in consensual sexual activities with a partner of their choice, is in
violation of Article 21.8

1. The right to live with dignity is a human right without which every other right would be
meaningless. Section 377 IPC fails to make distinguish between non-consensual and
consensual sexual acts again implying the lack of reasonable nexus.
2. A fair examination of Section 377 IPC shows that it amounts to an unreasonable
restriction, and social morality cannot be accepted as a reasonable ground for curbing the
fundamental rights of the LGBTQ community, thus violating Article 19(1) (a) of the
Constitution.

(7). IMPACT OF DECRIMINALISING HOMOSEXUALITY

 The repealing of Section 377 and the resultant decriminalisation of homosexuality in

India is a giant leap for the LGBTQ community in India. Before the Section was
repealed, people belonging to the LGBTQ community used to complain of harassment by

8
K.S. Puttaswamy & Anr. v. Union of India & Ors,(2017)10 SCC 1

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 law enforcement agencies, owing to the Section. This will come to an end since legally,
homosexuality is no longer a crime in India.
 It is important to remember that the SC ruling did not strike down the entire Section.
Offences against children, non-consensual sexual activity and bestiality continue to be
punishable.
 The judgement means that sexual minorities will get full access to all the enshrined
fundamental rights. They can lead a life of dignity without fear of the law.
 The Supreme Court not only restored the dignity of the individual but also held that the
state had no right to impose its version of morality through coercive penal provisions in
the most intimate aspects of a person's life.9

(8). LGBT RIGHTS IN INDIA : CURRENT STATUS

The LGBT community rejoiced with a big sigh of relief after the 2018 judgement in the Navtej
Singh Johar case, and rightly so- their over a decade long battle had finally paid off. Keeping in
view to further ensure protection and equal rights for transgender individuals,
In 2019, Parliament enacted Transgender Persons (Protection of Rights) Act .

 .It aims to recognise transgender people’s identities and prohibit discrimination in areas such
as education, employment, healthcare, holding or disposing of property, holding public or
private office, and access to and use of public services and benefits.
 Transgender Persons (Protection of Rights) Rules, 2020:
 The Central Government made the rules under the powers conferred by the Transgender
Persons (Protection of Rights) Act, 2019.
 National Portal for Transgender Persons was launched under in consonance with the
Transgender Persons (Protection of Rights) Rules, 2020.
 Scheme of ‘Shelter Home for Transgender Persons:
 To provide safe and secure shelter to transgender persons in need, the Ministry of Social
Justice and Empowerment is setting up 'Garima Greh' shelter homes for them10.

(9). THE WAY FORWARD

 The decriminalisation of Section 377 was a much much-called-for by the Indian

judiciary, but it is a sad reality that more people were against this decision than in
support. The LGBT community might have equal protection in the eyes of the law,
but in reality, these individuals face discrimination in workplaces and educational
9
Available at:last visited:22nd oct 2023: http://www.lawctopus.com
10
Available at : http://frontline.thehindu.com

[10]
 institutions to such an extent that it has become a part of their daily lives. Recently, a
class 10th student from Delhi, Arvey Malhotra, committed suicide because
he faced bullying by his batchmates.

. Supportive Policies and Laws: The government can create supportive policies and laws that
protect LGBTQIA+ individuals from discrimination, hate crimes, and violence.

 Aiming for Better Parenting: Human society is just a sphere around us, our parents are at
closest vicinity, they must be open to accepting their children's identity so that society as a
large can embrace diversity and accept each child's uniqueness.
 Our Diversity, Our Pride: It is important to create an open and accessible forum for
LGBTQIA+ youth to interact, share, and collaborate. Platforms like Gaysi and
Galaxy have helped create these spaces.
 .The Pride Month and Pride Parade Initiative should be promoted at
all levels through these platforms.

 From Special Treatment to Equal Treatment: There is a need to understand that

people with LGBTQIA+ identities aren't aliens, they're not sick, and their sexual
preference is innate. Homosexuality is a normal phenomenon, not a
disability.They deserve to be treated equally, not specially and once they are included
in Indian society as equals, they will get fully blended in collective development.

.In the recent judgement on 17th October 2023 of Supriyo a.k.a Supriya
Chakraborty & Abhay Dang v. Union of India thr. Its Secretary, Ministry of Law and
Justice & other connected cases, the Supreme Court ruled unanimously that the
legalization of same-sex marriage is a matter for the Parliament to decide, not the courts.
In a 3–2 decision, it ruled against ordering the government to introduce civil unions, and
in a separate 3-2 decision, ruled against ordering the government to allow adoption by
same-sex couples.

Last but not least, we, as citizens, must practice more appropriate behaviour towards
individuals of the LGBT community so that they feel more safe and have a sense of
belonging within our society. These civil rights include the right to marriage, right to
adoption, right to surrogacy, right against discrimination, freedom from sexual
assault etc. Asking them their preferred pronouns and referring to them by the same is a
good way to start.11

11
Available at:https://www.drishtiias.com

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(10). CONCLUSION

From above discussion I conclude by taking the reference of the Navtej Singh Johar case
that homosexuals got freedom and freed from the dark age of Section 377. From 6th
September 2018, consensual sex between two adults irrespective of sex was not a crime.
As I have mentioned, the historical background and through which we can understand
why this judgment is so valuable and important for LGBT people. we still have a very
long way to go. To treat these people like they are not normal is a crime in itself, nobody
deserves to feel that way, especially not based solely on their sexual choices. Decr
iminalising homosexuality would have reaped many benefits such as the better
implementation of methods for prevention of HIV/AIDS and protection of the LGBT
community from the abuse of the police and other public authorities. It would have
ensured their Right to live with dignity. India has an estimated 25 lakh gay population
and about 7 per cent (1.75 lakh) of them have HIV. At Last, it was the end of so many
humiliations, oppression and disregard and the beginning of a new dawn where people,
regardless of race, religion, caste, sex, culture as well as sexual orientation, are of one
identity that is human. They have the equal opportunity and equal right in every aspect
which Ashok Kavi described as “We are finally azaad in azaad Hind (Independent in
independent India)” (Jha, 2018).12On the other hand, there is a need to change social
concept along with the law and the political parties reluctant to do anything for the liberty
of homosexuals. If the society doesn’t accept homosexuals, then no law can recognize
them. But I hope that people’s attitude towards LGBT people are changing. Today the
LGBTQ pride march not only homosexual people but also heterosexuals walk in support
of the LGBT community.13

12
http://www.researchgate.net
13
Available at :last visited on 22nd oct 2023: http//articles.manupatra.com

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1. www.indiankanoon.com

2. www.researchgate.net

3. indianexpress.com

4. http://indianlawportal.co.in

5. www.jetir.org.

6. economictimes.indiatimes.com

7. http://www.scconline.com

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