Section 377
Section 377 is a British colonial Penal Code provision that criminalized all sexual acts "against the order of nature". The law was used to prosecute people engaging in oral and anal sex along with homosexual activity. As per a Supreme Court of India judgement since 2018, the Indian Penal Code Section 377 is used to convict non-consensual sexual activities among homosexuals with a minimum of ten years' imprisonment extended to life imprisonment. It has been used to criminalize third gender people, such as the apwint in Myanmar. In 2018, then British Prime Minister Theresa May acknowledged how the legacies of such British colonial anti-sodomy laws continue to persist today in the form of discrimination, violence, and even death.
History
Although the act of sodomy was sometimes prosecuted in England under British common law, it was first codified in the British empire as Section 377 in the Indian Penal Code as "carnal intercourse against the order of nature" in 1860. Section 377 was then exported to other colonies and even to England itself, providing the legal model for the act of 'buggery' in the Offences Against the Person Act. Alok Gupta wrote for a Human Rights Watch report in 2008 that the British intended for the code to prevent Christian colonial subjects from "corruption", and to condition colonized subjects undergoing Christianization to conform to colonial authority. This consequently had a big impact on colonial-era sexuality in India.Although Section 377 did not explicitly include the word homosexual, it has been used to prosecute homosexual activity. The provision was introduced by authorities in the Raj in 1862 as Section 377 of the Indian Penal Code and functioned as the legal impetus behind the criminalization of what was referred to as, "unnatural offences" throughout the various colonies, in several cases with the same section number.
In Singapore, a similar law called Section 377A of the Singapore Penal Code was introduced in 1938 by the colonial government that had also criminalized sex between men. In 2022, then Prime Minister Lee Hsien Loong had announced that the provision would be repealed. It was repealed on 29 November 2022 when the bill passed in Parliament.
Where Section 377 remains in force
Although most colonies have since gained independence through statehood since Section 377 was implemented, it remains in the penal codes of the following countries, all of which were formerly a part of the British Empire:- Bangladesh
- Myanmar
- Pakistan
- Sri Lanka
India
Portions of the section were first struck down as unconstitutional with respect to gay sex by the Delhi High Court in July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013 in Suresh Kumar Koushal vs. Naz Foundation. The Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary. On 6 February 2016, a three-member bench of the Court reviewed curative petitions submitted by the Naz Foundation and others, and decided that they would be reviewed by a five-member constitutional bench.
On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttaswamy judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. This judgement was believed to imply the unconstitutionality of section 377.
In January 2018, the Supreme Court of India agreed to hear a petition to revisit the 2013 Naz Foundation judgment. On 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". The judgment was given by a five-judge bench comprising the then Chief Justice of India Dipak Misra, Justices R. F. Nariman, D. Y. Chandrachud, A. M. Khanwilkar and Indu Malhotra.
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Public perception
Support
In 2008 Additional Solicitor General PP Malhotra said: "Homosexuality is a social vice and the state has the power to contain it. may create breach of peace. If it is allowed then 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." This view was shared by the Home Ministry.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 other's religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment" The Daily News and Analysis 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".
Opposition and criticism
The Ministry of Health and Family Welfare opposed the upholding of Section 377, stating that it would hinder anti-HIV/AIDS efforts. According to the NCRB, in 2015, 1,491 people were arrested under Section 377, including 207 minors and 16 women. Human Rights Watch also argued that the law had been used to harass HIV/AIDS prevention efforts, as well as sex workers, homosexuals, and other groups at risk of the disease, even though those found guilty of extortion in relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of the IPC. The People's Union for Civil Liberties has published two reports on the rights violations faced by sexual minorities and, in particular, transsexuals in India.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.
View of political parties
Opposition to repeal
, a member of the ruling party BJP and the Home Minister, is on record shortly after the law was re-instated in 2013, claiming that his party is "unambiguously" in favour of the law, also claiming that "We will state that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported." Yogi Adityanath, BJP MP, welcomed the 2013 verdict and will "oppose any move to decriminalise homosexuality."The Samajwadi Party made it clear that it will oppose any amendments to the section if it comes in Parliament for discussion, calling homosexuality "unethical and immoral". Ram Gopal Yadav stated that they support the Supreme Court decision as "It is completely against the culture of our nation."
The Congress party-led UPA government also supported the law during the initial Naz Foundation case, stating that gay sex was 'immoral' and that it cannot be decriminalized.
Bharatiya Janata Party leader Subramanian Swamy said that homosexuality was not a normal thing and was against Hindutva. He went on to say that it was "a danger to our national security" and that the government should invest in medical research to see if homosexuality can be cured. He added that "there is a lot of money behind it. The Americans want to open gay bars, and it'll be a cover for pedophiles and a huge rise in HIV cases."
After the 2018 verdict by the Supreme Court, the Indian Union Muslim League continued to oppose decriminalisation, saying 'homosexuality is against Indian culture'.
Support of repeal
Former Finance Minister and BJP member Arun Jaitley said that "Supreme Court should not have reversed the Delhi High Court order which de-criminalized consensual sex between gay adults" and "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed." BJP spokesperson Shaina NC said her party supports decriminalisation of homosexuality. "We are for decriminalising homosexuality. That is the progressive way forward."In December 2013, Indian National Congress President Rahul Gandhi came out in support of LGBT rights and said that "every individual had the right to choose". He also said "These are personal choices. This country is known for its freedom, freedom of expression. So let that be. I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement", he said. The LGBT rights movement in India was also part of the election manifesto of the Congress for the 2014 general elections. Sonia Gandhi also shared a similar view. Senior Congress leader and former Finance Minister P. Chidambaram stated that the 2013 Suresh Kumar Koushal vs. Naz Foundation judgement must be quickly reversed. He also said that "Section 377, in my view, was rightly struck down or read down by the Delhi High Court judgement by Justice AP Shah."
The RSS revised its position, the leader Dattatreya Hosabale reportedly saying, "no criminalisation, but no glorification either."
RSS chief Mohan Bhagwat also came out in support of the LGBTQIA+ community stating that they should be accepted as an integral part of society.
After the 2013 verdict, the Aam Aadmi Party put on their website:
Brinda Karat of the Communist Party said the SC order was retrograde and that criminalising alternative sexuality is wrong.
Shivanand Tiwari, leader of Janata Dal United, did not support the Supreme Court decision, calling homosexuality practical and constitutional. He added that "This happens in society and if people believe it is natural for them, why is the Supreme Court trying to stop them?"
Derek O'Brien of the Trinamool Congress said that he is disappointed at a personal level and this is not expected in the liberal world we live in today.