Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code has been in controversy since earlier times. According to Section 377 of the Indian Constitution, it was considered a criminal act to indulge in sex between same-sex individuals. Over the years, Section 377 became the center of debate between various communities and the Indian Court of Law. The LGBTQ community was the most dissatisfied as it did not give them the right to privacy and divided them from the rest of the communities. On September 6, 2018, the Supreme Court gave the verdict of Decriminalizing Section 377.

In this article, you can read all about Section 377 of the Indian Penal Code, its relation to the rights of the LGBTQ community, and the debate surrounding this topic for the UPSC exam.

What is Section 377 of the Indian Penal Code?

Section 377 of the Indian Penal Code states “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”. In colonial times, section 377 implicated homosexual people who committed the act of sex. Some practices followed by heterosexual people were also considered as “against nature” but relief came to homosexuals when in 2018, the Supreme Court ruled out that Section 377 was not justified and made sex between homosexual adults legal. Non-Consensual sexual acts and sex with minors is still considered criminal act according to section 377.

Major Arguments Made by the Supreme Court

The Supreme Court made the following important points in favor of decriminalization:

• According to Article 14, all Indian citizens have equal rights despite their caste, creed, or color. To know more, please refer to Article 14.
• The Court upheld the supremacy of constitutional morality, stating that equality before the law cannot be denied by giving preference to religious or public morality.
• The Supreme Court also considered the fact that according to modern psychiatry, homosexuality is not a mental disorder. Also, the fact that animals also indulge in homosexual acts means that it is not against nature’s way.
• Additionally, the Supreme Court declared that Indian law should be governed by the “Yogyakarta Principles on the Application of International Law about Issues of Sexual Orientation and Gender Identity.” These are some guidelines that deal with how international human rights law should be applied to gender identity and sexual orientation.

Indian Supreme Court Judgment on Section 377

When the AIDS Bhedbhav Virodhi Andolan released a seminal study titled “Less than Gay: A Citizen’s Report,” in 1991, the movement against Sec 377 got underway. The report outlined this Section’s shortcomings and made the case for its repeal. The Naz Foundation, an NGO, made the second and most current attempt at this approach. The group attempted to legalize homosexual unions between two consenting adults in 2001 by filing a Public Interest Litigation (PIL) in the Delhi High Court. However, the petition was dismissed in 2004.

The Delhi High Court decriminalized homosexuality in 2009 after the Supreme Court ordered the Delhi HC to rehearse the case, concluding that consenting to gay relations between adults is not prohibited. But the verdict was again challenged by journalist Suresh Kumar Kaushal, in whose favour the decriminalisation of homosexuality in India was reversed in 2013. The Supreme Court handed over the decision to the Parliament.

This decision was met by a lot of outrage from the LGBTQ community in India and abroad who showed their rejection of the decision by holding protests. A lot of revision requests were made which were rejected by the Supreme Court.

Section 377 of Indian Penal Code Amendment, 2018

On January 5^th 2018, a plea was made by the Supreme Court for a five-judge bench. The five judges which were chosen were Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman, and Justice Indu Malhotra. The session commenced from 10 July 2018.There were two major judgements made which swayed the tide in favour of Section 377. They were:

1. In 2014, The SC gave the transgender community the right to be called the third gender, better known as the NALSA judgement.
2. In 2017, in the Puttaswamy judgement, the Supreme Court emphasized that the right to privacy is a fundamental right, where privacy includes one’s personal family life, marriage, personal intimacies, procreation, and sexual orientation. In 2018, the Constitution bench reopened the case where they delegated that it was wrong for a section of people to not have their rights to privacy and dignity and to choose. The petitioners claimed that because Section 377 of the Indian Penal Code exists, they are not entitled to the equality, dignity, fraternity, liberty, and life that the Constitution guarantees. This was in violation of Article 14 and 15.

Finally on Septenber 6, 2018, the five panel judges took down Section 377 and decriminalised sex between two homosexual individuals. Only non- consensual sex which was against nature could still be penalised under Section 377.

Decriminalization of Section 377

The following arguments were made to revoke the decision taken against the LGBTQ community in the context of Section 377 of Indian Penal Code:

• Section 377 vindicated a section of society for being a sexual minority. The petitioners contended that human dignity depended on freedom, autonomy, and the right to sexuality.
• Given that homosexuality was criminalized, certain members of the public were unable to obtain proper medical care. It made it more difficult to effectively test for, prevent, and treat AIDS and HIV.
• The Indian Court considers all citizens equal in the eyes of the law. However, various religions and cultures consider homosexuality a taboo. Some child activists argued that the repealing of this section would mean that child abuse cases would also be mishandled. However, the government declared POSCO in 2012 which is the “Protection of Children from Sexual Offences”. This was exclusive for cases of child abuse- both physical and mental.
• Certain consensual acts between heterosexuals were also considered ‘unnatural’ and punishable.

Arguments against Repealing Sec 377

Numerous organizations opposed the abolition of this section. Various religious organizations and religions opposed it, claiming that homosexuality violated both religious morality and God. Another argument against wiping the Section was that it would encourage the spread of diseases like AIDS and create a health risk for the nation.

377 Indian Penal Code Punishment

Anyone who is found guilty of Section 377 of Indian Penal Code will be punished with life imprisonment or sentenced to 10 years along with fine.

Impact of Decriminalising Homosexuality

The revoking of criminalisation from Article 377 had a huge impact on the society and its people. Following are some of the key points:

1. This led to worldwide acceptance of the LGBTQ community as they had equal rights to that of the other communities.
2. LGBTQ individuals gained the freedom to express their sexual orientation openly. The decriminalisation worked in accordance with the right to privacy and intimacy.
3. As homosexuality has become legal, the mental health of people belonging to the LGBTQ community has greatly improved. However, there are still a lot of people who have yet to accept these people into their culture.
4. Due to the implication of the revised Section 377 of the Indian Penal Code, LGBTQ people gained more visibility in different sectors such as politics, healthcare, and entertainment. 
5. LGBTQ+ people are more likely to receive healthcare services without worrying about prejudice or retaliation.
6. The LGBTQ+ community now enjoys more legal rights and protections thanks to the decriminalization. It laid the groundwork for conversations about topics like inheritance and adoption rights, anti-discrimination laws, and the acceptance of same-sex couples.

Summary – Section 377 of the Indian Penal Code

FAQs on Section 377 of the Indian Penal Code

1. Why was Section 377 removed?

The Section 377 resulted in discrimination of the LGBTQ community from the rest of the society by criminalising sexual relations between homosexual people and also some sexual acts between heterosexuals which were ‘against the nature’ were also vindicating.

2. Is Section 377 bailable or not?

Section 377 is considered a serious offence and is non- available. Anyone found guilty is tried in the a first class magistrate court.

3. Is Section 377 of the Indian Penal Code between husband and wife?

No, Section 377 of the Indian Penal Code is null in case of a husband and wife. Once married, The IPC directs that there is no barrier on the kinds of sexual activities that occur between a husband and wife.

4. Is 377 legal in India?

Section 377 of the Indian Penal Code is still valid but only to the extent that non consensual sexual acts carried out by men that are equivalent to ‘unnatural sex’ will be punishable. The criminalisation part of it is not valid.

5. What is the 5 years of Section 377 of the Indian Penal Code?

September 6, 2023 was celebrated as it commemorated 5 years of the historical decision in which Section 377 was readressed. This decision resulted in the decriminalisation of sex between same sex individuals and gave them equal legal rights as the rest of the society.