Section 377 of the Indian Penal Code
Encyclopedia
Chapter XVI, Section 377 of the Indian Penal Code is a piece of legislation
in India
introduced during British rule of India that criminalises sexual activity "against the order of nature." The section was read down to decriminalise same-sex behaviour among consenting adults in a historic judgement by the High Court of Delhi on 2 July 2009. Section 377 continues to apply in the case of sex involving minors and coercive sex.
PP Malhotra said:
argues that the law has been used to harass HIV/AIDS
prevention efforts, as well as sex worker
s, homosexuals, and other groups at risk of the disease. The People's Union for Civil Liberties
has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals in India.
In 2006 it came under criticism from 100 Indian literary figures, most prominently Vikram Seth
. The law subsequently came in for 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.
, an activist group, which filed a public interest litigation
in the Delhi High Court
in 2001, seeking legalisation of homosexual intercourse between consenting adults. The Naz Foundation worked with a legal team from the Lawyers Collective
to engage in court. 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. 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.
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. 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. On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated.
Eventually, in a historic judgement delivered on 2 Jul 2009, Delhi High Court overturned the 150 year old section, legalising consensual homosexual activities between adults. 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:
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.
Legislation
Legislation is law which has been promulgated by a legislature or other governing body, or the process of making it...
in India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
introduced during British rule of India that criminalises sexual activity "against the order of nature." The section was read down to decriminalise same-sex behaviour among consenting adults in a historic judgement by the High Court of Delhi on 2 July 2009. Section 377 continues to apply in the case of sex involving minors and coercive sex.
History
The ambit of Section 377, which was devised to criminalize and prevent homosexual associations - sodomy in particular, extends to any sexual union involving penile insertion. Thus even consensual heterosexual acts such as fellatio and digital penetration may be a punishable offense under this law.Support
In 2008 Additional Solicitor GeneralSolicitor General of India
The Solicitor General for India is subordinate to the Attorney General of India, who is the Indian government's chief legal advisor, and its primary lawyer in the Supreme Court of India. The Solicitor General for India is the second law officer of the country, assists the Attorney General, and is...
PP Malhotra said:
Opposition and criticism
Convictions are extremely rare, and in the last twenty years there have been no convictions for homosexual relations in India. However, Human Rights WatchHuman Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
argues that the law has been used to harass HIV/AIDS
AIDS
Acquired immune deficiency syndrome or acquired immunodeficiency syndrome is a disease of the human immune system caused by the human immunodeficiency virus...
prevention efforts, as well as sex worker
Sex worker
A sex worker is a person who works in the sex industry. The term is usually used in reference to those in the sex industry that actually provide such sexual services, as opposed to management and staff of such industries...
s, homosexuals, and other groups at risk of the disease. The People's Union for Civil Liberties
People's Union for Civil Liberties
People's Union for Civil Liberties is a human rights body formed in India in 1976 by socialist leader Jayaprakash Narayan, as the People's Union for Civil Liberties and Democratic Rights .-The indian emergency:...
has published two reports of the rights violations faced by sexual minorities and, in particular, transsexuals in India.
In 2006 it came under criticism from 100 Indian literary figures, most prominently Vikram Seth
Vikram Seth
Vikram Seth is an Indian poet, novelist, travel writer, librettist, children's writer, biographer and memoirist.-Early life:Vikram Seth was born on 20 June 1952 to Leila and Prem Seth in Calcutta...
. The law subsequently came in for criticism from several ministers, most prominently Anbumani Ramadoss
Anbumani Ramadoss
Dr Anbumani Ramadoss had been the Union Minister of Health and Family Welfare of the Government of India from May, 2004 till he resigned his post in April 2009 and is a member of Parliament from the Rajya Sabha he belongs to the Pattali Makkal Katchi. Born on 9 October 1968 in Puducherry, Anbumani...
and Oscar Fernandes
Oscar Fernandes
Oscar Fernandes is an India politician, a senior Indian National Congress leader and AICC General Secretary. He was the Minister of State of the Ministry of Labour and Employment in Dr. Manmohan Singh's first UPA government in India. He was elected to the 7th Lok Sabha in 1980 from Udupi...
. In 2008, a judge of the Bombay High Court also called for the scrapping of the law.
Legal battle
The movement to repeal Section 377 was led by the Naz Foundation (India) TrustNaz Foundation (India) Trust
The Naz Foundation Trust is a non-governmental organisation in that country that works on HIV/AIDS and sexual health. It is based in the Indian capital of New Delhi.-History:...
, an activist group, which filed a public interest litigation
Public interest litigation
In Indian law, Public Interest Litigation OR जनहित याचिका means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party...
in the Delhi High Court
Delhi High Court
The High Court of Delhi was established on 31 October 1966. The High Court of Delhi was established with four judges. They were Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. K. Kapur.-History:...
in 2001, seeking legalisation of homosexual intercourse between consenting adults. The Naz Foundation worked with a legal team from the Lawyers Collective
Lawyers Collective
Lawyers Collective is an NGO in India which promotes human rights, especially issues relating to women's rights, HIV, tobacco, and parliamentary corruption in India.-Founding:Lawyers collective was founded in 1981...
to engage in court. In 2003, the Delhi High Court
Delhi High Court
The High Court of Delhi was established on 31 October 1966. The High Court of Delhi was established with four judges. They were Chief Justice K. S. Hegde, Justice I. D. Dua, Justice H. R. Khanna and Justice S. K. Kapur.-History:...
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. 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.
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. 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. On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated.
Eventually, in a historic judgement delivered on 2 Jul 2009, Delhi High Court overturned the 150 year old section, legalising consensual homosexual activities between adults. 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
Ajit Prakash Shah
Ajit Prakash Shah was the Chief Justice of the Delhi High Court from May 2008 till his retirement in February 2010...
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:
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.
External links
- Male-to-male sex, and sexuality minorities in South Asia: an analysis of the politico-legal framework, Arvind Narrain & Brototi Dutta, 2006.
- Official website of the Naz Foundation of (India) Trust