The Supreme Court on 10 July 2018 started hearing a bunch of petitions challenging Section 377 of the Indian Penal Code (IPC). Having rejected the Centre’s plea seeking postponement of the proceedings, the court will re-consider and examine the constitutional validity of Section 377, which criminalises any sexual activity that is “against the law of nature”.
The petitions will be heard by a newly re-constituted five-judge constitution bench.
With the SC hearing re-opening the debate on homosexuality in India, let’s take a look on IPC Section 377 as a whole, and its significance in the country.
What is Section 377?
The Section 377 of Indian Penal Code has been in existence for more than one and a half centuries now. In simple words, Section 377 is a law that calls gay sex unnatural and a crime for which the punishment can be a life term.
“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,” says the IPC section.
Promulgated in the 1860s, during the British era, the section continues to criminalise homosexuality even if it’s between two consenting adult males or females.
Consensual sexual acts — oral and anal sex in private — by heterosexual adults are also currently treated as unnatural and punishable under Section 377.
In July 2009, the Delhi High Court had described Section 377 a violation of the fundamental rights granted by the Constitution and decriminalised it.
The judgment was however overturned by the Supreme Court on 11 December 2013, which restored the criminality of a sexual relationship between persons of the same sex.
After several curative petitions were filed by the affected parties seeking a re-examination of the verdict, the top court took up the matter again for hearing earlier this year.
On January 8, 2018, hearing a petition filed by Sangeet Natak Akademi awardee Bharatnatyam dancer Navtej Singh Johar, celebrity chef Ritu Dalmia and others who said they were living in fear of being prosecuted, the top court said the 2013 decision required to be reconsidered. “The section of people who exercise their choice should never remain in a state of fear,” the court said, sending the matter to a larger bench.
This five-judge bench started hearing on the matter on 10 July.
The lesbian, gay, bisexual and transgender (LGBT) community has long been demanding that Section 377 be scrapped or amended, seeking to decriminalise homosexuality.
Eminent personalities and political leaders have come out in support of the LGBT community. Among the politicians who have supported decriminalising gay sex between consenting partners are Congress leaders Rahul Gandhi and P Chidambaram, Trinamool MP Derek O Brian, CPM leader Brinda Karat. The Aam Aadmi Party has also spoken in favour of the community.
Leaders of the ruling BJP, however, seem divided on the issue. In 2013, after the SC decision, senior leader Rajnath Singh had said: “We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.” Finance Minister Arun Jaitley was, however, of the view: “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.”
A growing number of governments around the world are considering making homosexuality legal. Australia and Germany are the latest countries to legalize same-sex marriages.