Section 377 has always been under public discourse and discussion. Some activists have called it a regressive and unjust law which curtails the fundamental rights of citizens. To get a better understanding of the law it is necessary to trace its history, to understand exactly how the law came to be. This article examines the evolution law from 16th century Great Britain right till the 2015 Private Bill submitted by Dr. Shashi Tharoor..
We have all heard of the infamous Section 377 of the Indian Penal Code, which criminalizes homosexuality. However there are numerous misconceptions regarding its origin and history. This article aims to bring light to the matter: trace its roots, explain the various controversies surrounding, and introduce the various judgments that have been made and legislations that have been drafted in regards to it. As it exists today in Chapter XVI of the Indian Penal Code, Section 377 states:
“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 a term which may extend to ten years, and shall also be liable to fine.
Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
The Buggery Act of 1533
This Section was drafted by Thomas Macaulay around 1838 but was only brought into effect in 1860 in light of the Sepoy Mutiny (First War of Independence) 1857. This law in British India was modelled on the Buggery Act 1533 which was enacted under the reign of King Henry VIII. This law defined ‘buggery’ as an unnatural sexual act against the will of God and man. Thus, this criminalised anal penetration, bestiality and in a broader sense homosexuality.
Offences against the Person Act 1861
In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, but also homosexuals. This Act is what is considered to be the inspiration for Section 377 of the Indian Penal Code. In years to come this Act would be repealed by the British and replaced by the Offences against the Person Act 1861 and finally homosexuality was decriminalised by the Sexual Offences Act 1967. It is interesting to note that while the British government has now made same-sex marriage legal, the Indian government still follows this archaic law written in the 1830s and enacted in 1860.
The Delhi High Court Verdict of 2009
Over the years Section 377 has sparked numerous controversies and has been challenged in both the High Court of Delhi and the Supreme Court. In 2001, Naz Foundation (India) Trust, a non-governmental organization challenged Section 377 in the Delhi High Court by filing a lawsuit to allow homosexual relations between consenting adults. They argued that Section 377 should only be applicable to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. However in 2003, the High Court dismissed the case, stating that the Naz Foundation had no standing in the matter (locus standi). The Naz Foundation appealed this dismissal by the High Court to the Supreme Court, which concurred with them, and instructed the High Court to reconsider the case. This led to the historic judgement in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, which decriminalized consensual sexual acts between adults. Furthermore, this judgement was to be in force until the Parliament decided to amend Section 377.
Appeals in the Supreme Court
This led to various appeals being made to the Supreme Court, challenging the High Court’s authority to change a law. While the Supreme Court dismissed numerous such appeals and the then Attorney General G. E. Vahanvati made it clear that he wasn’t planning to file an appeal against the verdict of the Delhi High Court; numerous appeals kept being filed challenging the validity of the judgement made by the High Court. Finally on December 11th, 2012 a panel of two Supreme Court judges overturned the decision that the High Court had made in 2009. The judgement stated that the power to amend the law was with the Parliament and not the High Court, thus their (High Court’s) judgement was constitutionally unstable. Thus, the Supreme Court recommended that the Parliament address the matter because only they had the power to amend the existing laws.
Shashi Tharoor’s Private Member Bill
Since this decision was made just before the 2014 General Elections, it was no surprise that no party was willing to introduce a bill on such a controversial topic. Since the NDA government has taken power, there have been no government bills addressing this issue. However, Shashi Tharoor the Member of Parliament from Thiruvananthapuram and the former Under Secretary-General of the United Nations used the social media to raise awareness, sign petitions regarding the matter, and finally introduced a private bill. This bill aimed at allowing adults have consensual non-vaginal sexual intercourse, thus effectively decriminalising homosexuality. However it was disappointing to see that this bill was almost immediately rejected without it even being introduced.
It is tough to say what the future of Section 377 will be. The question remains: are we going to be governed by an archaic, socially conservative British law or are we going to implement more liberal, progressive and inclusive laws.