Section 377 of the Indian Penal Code
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Chapter XVI, Section 377 of the Indian Penal Code dating back to 1860, introduced during the British rule of India, criminalises sexual activities "against the order of nature", arguably including homosexual
The section was decriminalized with respect to sex between consenting adults by the High Court of Delhi on 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.
On 6 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the Supreme Court. The three-member bench headed by the Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.
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.
The ambit of Section 377, extends to any sexual union involving penile insertion. Thus, even consensual sexual acts such as fellatio and anal penetration may be punishable under this law.
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.
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 other’s religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment."
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.” (Traditionally, Indian culture, or at least Hinduism, has been more ambivalent about homosexuality than Singhal suggests.)
Maulana Madni of the Jamiat Ulema echoes this in the article, 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.” 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 Court’s view is an endorsement of our scriptures.”
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 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, 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 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.
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. 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. The Indian author Rajesh Talwar wrote a satirical play on Section 377 titled 'Inside Gayland' where a young lawyer visits a planet where homosexuality is the norm and heterosexuality is criminalised.
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:
|“||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.
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.
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. 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."
On 11 December 2013, the Supreme Court of India set aside the 2009 judgement given by the Delhi High Court stating that judicial intervention was not required in this issue. This in effect recriminalized sexual intercourse "against the order of nature". In its judgment the Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated —
"In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable."
The full decision can be found here.
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 upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offense. The central government has filed a review petition on 21 December 2013. In its review petition the Centre said: “The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.” The IPC, when enacted in 1860, was justified; but with the passage of time it had become arbitrary and unreasonable, the petition added. Naz Foundation has also filed a review petition against the Supreme Court order on Section 377. On January 28, 2014 Supreme Court dismissed the review Petition filed by Central Government, NGO Naz Foundation and several others, against its December 11 verdict on Section 377 of IPC.
Days later and influenced by the Devyani Khobragade incident, former Finance Minister Yashwant Sinha called for the arrest of same-sex companions of US diplomats, citing the Supreme Court of India's recent upholding of Section 377 of the Indian Penal Code. The recriminalization of gay sex comes under fire from World leaders. The United Nations human rights chief Navi Pillay voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it “a significant step backwards” for the country.In the wake of Indian Supreme Court's ruling that gay sex is illegal, UN chief Ban Ki-moon stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals.
Soon after the judgement, Sonia Gandhi, President of the then ruling Congress party, asked Parliament to do away with section 377. Her son and Congress Party vice-President, Rahul Gandhi also wanted section-377 to go and supported gay rights. In July 2014, Minister of State for Home Kiren Rijiju in the BJP led Central government told the Lok Sabha in a written reply that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court. However, on 13 January 2015, BJP spokesperson Shaina NC, appearing on NDTV, stated, "We [BJP] are for decriminalizing homosexuality. That is the progressive way forward."
Actor Imran Khan took action in order to disabuse homophobic people from their mistaken notions of homosexuality in a satire video. Many Mumbai film industry personalities such as Aamir Khan, Celina Jaitley, Twinkle Khanna, John Abraham, Karan Johar, Farhan Akhtar, Riteish Deshmukh, Shruti Haasan, Sonam Kapoor, Anushka Sharma, Amitabh Bachchan, commented against the ruling. Many other well known persons, including Nobel Laureate Amartya Sen, and writer Vikram Seth, protested against the supreme court ruling.
In 2013, Delhi-based author Akhil Katyal published a poem "Girl, when you" satirizing Section 377 and how it implicates heterosexual acts as well.
|“||Girl, when you
blow your boy,
or boy, when
you go down
on her, or when
both of you use
a toy, and all the
world’s a blur,
I know it feels
like heaven, you
too violate 377.
The Wrong Burrow, a short story satirizing the judgment of the Supreme Court, was published in the January 2015 edition of an Indian e-zine, Spark.
In September 2015, first time author Manish Jani launched a fiction book titled 377 that revolves around four youngsters finding themselves in a unique situation where they are compelled to raise their voices against Section 377 of Indian Penal Code.
On 2 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the Supreme Court. The three-member bench headed by the Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.
On 18 December 2015, Lok Sabha member Shashi Tharoor of the Indian National Congress, whose leaders Sonia Gandhi and Rahul Gandhi had earlier expressed support for LGBT Rights, introduced a private member's bill to replace Section 377 in the Indian Penal Code and decriminalize consensual same-sex relations. The bill was defeated in first reading, 71-24. On his part, Tharoor expressed surprise at the bills rejection at this early stage. He said that he did not have time to rally support and that he will attempt to reintroduce the bill.
In March 2016, Tharoor tried to reintroduce the private member's bill to decriminalize homosexuality, but was voted down for the second time.
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