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#REDIRECT ] |
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{{Use Indian English|date=January 2013}} |
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{{more citations needed|date=September 2015}} |
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'''Section 377 the Indian Penal Code''' is <!-- We do not use the past tense because the provision still exists --> a section of the ] introduced in 1861 during the ]. Modelled on the ], it criminalises <!-- We do not use the past tense because the provision still exists --> sexual activities "against the order of nature". Its application to consensual ] sex between adults was found unconstitutional in 2018. |
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The section was first struck down as unconstitutional in this respect by the ] in July 2009.<ref>{{Cite web|url=https://www.livemint.com/Politics/sl3bjL7PX8MzUeOhPGejyI/Delhi-high-court-decriminalizes-homosexuality.html|title=Delhi high court decriminalizes homosexuality - Livemint|website=www.livemint.com|access-date=2018-07-10}}</ref><ref>{{Cite web|url=https://www.theguardian.com/world/2009/jul/02/homosexuality-decriminalised-delhi-india|title=Indian court decriminalises homosexuality in Delhi|last=Press|first=Associated|date=2009-07-02|website=the Guardian|language=en|access-date=2018-07-10}}</ref><ref>{{Cite news|url=https://in.reuters.com/article/idINIndia-40752720090702|title=Delhi High Court overturns ban on gay sex|last=Editorial|first=Reuters|work=IN|access-date=2018-07-10|language=en-IN}}</ref> That judgement was overturned by the ] (SC) on 11 December 2013 in '']''. The Court held that amending or repealing section 377 should be a matter left to ], not the judiciary.<ref>{{Cite news|url=https://www.livemint.com/Politics/FHDQ9yB2jRJMsOlNCQrkgL/Supreme-Court-to-rule-on-legality-of-gay-sex-today.html|title=Policy|last=Monalisa|first=|date=2013-12-11|work=Livemint|access-date=2018-07-10}}</ref><ref>{{Cite news|url=https://www.thehindu.com/news/national/supreme-court-sets-aside-delhi-hc-verdict-decriminalising-gay-sex/article5446939.ece|title=Supreme Court sets aside Delhi HC verdict decriminalising gay sex|last=Venkatesan|first=J.|date=2013-12-11|work=The Hindu|access-date=2018-07-10|language=en-IN|issn=0971-751X}}</ref> On 6 February 2016, a three-member bench of the SC reviewed ]s submitted by the ] and others, and decided that they would be reviewed by a five-member ].<ref name="Indian Express">{{cite news | url=http://indianexpress.com/article/india/india-news-india/supreme-court-agrees-to-hear-petition-on-section-377-refers-matter-to-five-judge-bench/ | title=Supreme Court agrees to hear petition on Section 376, refers matter to five-judge bench | date=2 February 2016 | accessdate=2 February 2016}}</ref> |
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On 24 August 2017, the SC upheld the ] as a ] under the ] in the landmark "]". The SC also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine.<ref name=":2">{{Cite news|url=http://sci.gov.in/pdf/LU/ALL%20WP(C)%20No.494%20of%202012%20Right%20to%20Privacy.pdf|title=Right to Privacy Judgement|last=|first=|date=24 August 2017|work=Supreme Court of India|access-date=|archive-url=https://web.archive.org/web/20170828075957/http://sci.gov.in/pdf/LU/ALL%20WP(C)%20No.494%20of%202012%20Right%20to%20Privacy.pdf|archive-date=2017-08-28|dead-url=yes|pages=121, 123, 124, 124}}</ref> This judgement was believed to imply the unconstitutionality of section 377.<ref>{{Cite news|url=https://www.thehindu.com/opinion/lead/endgame-for-section-377/article19555379.ece|title=Endgame for Section 377?|last=Balakrishnan|first=Pulapre|date=2017-08-25|work=The Hindu|access-date=2018-07-10|language=en-IN|issn=0971-751X}}</ref><ref>{{Cite web|url=https://www.firstpost.com/india/supreme-court-rights-old-judicial-wrongs-in-landmark-right-to-privacy-verdict-shows-state-its-rightful-place-3984011.html|title=Supreme Court rights old judicial wrongs in landmark Right to Privacy verdict, shows State its rightful place - Firstpost|website=www.firstpost.com|access-date=2018-07-10}}</ref><ref>{{Cite web|url=https://thewire.in/gender/ap-shah-377-right-to-privacy|title=Right to Privacy Judgment Makes Section 377 Very Hard to Defend, Says Judge Who Read It Down|website=The Wire|access-date=2018-07-10}}</ref> |
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In January 2018, the SC agreed to hear a petition to revisit the 2013 ''Naz Foundation'' judgment. On 6 September 2018, the court ruled unanimously in '']'' that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex". It still applies to non-consensual sexual acts between adults, and to acts involving children or animals.<ref>, par. 156.</ref><ref>{{Cite web|url=https://thewire.in/law/supreme-court-scraps-section-377-majoritarian-views-cannot-dictate-rights-says-cji|title=Supreme Court Scraps Section 377; 'Majoritarian Views Cannot Dictate Rights,' Says CJI|website=The Wire|access-date=2018-09-06}}</ref> |
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==Text== |
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{{quote|'''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. |
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'''Explanation''': Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. |
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<ref>{{Cite web|url=https://indiankanoon.org/doc/1836974/|title=Section 377 in The Indian Penal Code|last=|first=|date=|website=Indian Kanoon|access-date=2017-10-30}}</ref><ref>{{Cite web|url=http://chddistrictcourts.gov.in/THE%20INDIAN%20PENAL%20CODE.pdf|title=THE INDIAN PENAL CODE, 1860|last=|first=|date=|website=Chandigarh District Court|archive-url=https://web.archive.org/web/20070114135350/http://chddistrictcourts.gov.in/THE%20INDIAN%20PENAL%20CODE.pdf|archive-date=2007-01-14|dead-url=yes|access-date=2017-10-30}}</ref>|sign=|source=}} |
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==Public perception== |
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{{Main|Homosexuality in India}} |
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===Support=== |
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In 2008 Additional ] PP Malhotra said: |
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{{quote|Homosexuality is a social vice and the state has the power to contain it. may create breach of peace. If it is allowed then 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."|sign=|source=}} |
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A view similarly shared by the Home Ministry.<ref>{{Cite web|url=http://indiatoday.intoday.in/story/HC+pulls+up+government+for+homosexuality+doublespeak/1/16228.html|title=HC pulls up government for homosexuality doublespeak|last=|first=|date=2008-09-26|website=India Today|access-date=}}</ref> |
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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 judgement."<ref>{{cite web|url=http://www.dnaindia.com/india/report-rare-unity-religious-leaders-come-out-in-support-of-section-377-1933612|title=Rare unity: Religious leaders come out in support of Section 377 - Latest News & Updates at Daily News & Analysis|date=12 December 2013|website=DNAIndia.com|access-date=30 December 2017}}</ref> The ''Daily News and Analysis'' article added that Baba ], 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 ]'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 ] than Singhal suggests.) |
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Maulana Madni of the ] echoes this in the article, stating that “] 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 ], 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 ] 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.” |
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===Opposition and criticism=== |
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The ] released figures indicating that nearly 600 people had been arrested under Section 377 in 2014, which was linked to an increase in the blackmail of LGBT people.<ref>{{Cite web|url=https://scroll.in/article/700121/arrests-for-unnatural-sex-soar-so-do-cases-of-gay-people-being-blackmailed|title=Arrests for 'unnatural sex' soar. So do cases of gay people being blackmailed|last=Chari|first=Mridula|date=13 January 2015|website=Scroll.in|access-date=4 November 2017}}</ref> According to the ], in 2015, 1,491 people were arrested under Section 377, including 207 minors (14%) and 16 women.<ref>{{Cite web|url=https://timesofindia.indiatimes.com/city/mumbai/14-of-those-arrested-under-section-377-last-year-were-minors/articleshow/54573741.cms|title=14% of those arrested under section 377 last year were minors|last=Thomas|first=Shibu|date=29 September 2016|website=The Times Of India|access-date=4 November 2017}}</ref> ] argues that the law has been used to harass ] prevention efforts, as well as ]s, ], and other groups at risk of the disease,<ref>, report from ], 11 January 2006.</ref> 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.<ref>{{cite web|url=http://indiankanoon.org/doc/970675/|title=Section 389 in The Indian Penal Code|website=IndianKanoon.org|access-date=30 December 2017}}</ref> The ] has published two reports of the rights violations faced by sexual minorities<ref>{{cite web |url=http://www.altlawforum.org/PUBLICATIONS/PUCL%20REport%201 |title=Archived copy |accessdate=2009-07-02 |deadurl=yes |archiveurl=https://web.archive.org/web/20090725200649/http://www.altlawforum.org/PUBLICATIONS/PUCL%20REport%201 |archivedate=25 July 2009 |df=dmy-all }}</ref> and, in particular, ]s in India.<ref>{{cite web |url=http://www.altlawforum.org/PUBLICATIONS/PUCL%20REPORT%202003 |title=Archived copy |accessdate=2007-02-05 |deadurl=yes |archiveurl=https://web.archive.org/web/20070202173932/http://www.altlawforum.org/PUBLICATIONS/PUCL%20REPORT%202003 |archivedate=2 February 2007 |df=dmy-all }}</ref> |
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In 2006 it came under criticism from 100 Indian literary figures,<ref>{{cite news |
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| title =India's literary elite call for anti-gay law to be scrapped | date =2006-09-18 | url =http://books.guardian.co.uk/news/articles/0,,1874835,00.html | accessdate =2007-09-01 | work=The Guardian | location=London | first=Randeep | last=Ramesh}}</ref> most prominently ]. The law subsequently came in for criticism from several ministers, most prominently ]<ref name="Mexico AIDS conference">{{cite news|url=http://articles.timesofindia.indiatimes.com/2008-08-09/india/27931000_1_hiv-epidemic-national-aids-control-organization-msms|title=Legalise homosexuality: Ramadoss|publisher=]|date=2008-08-09|author=Kounteya Sinha|accessdate=2009-07-02}}</ref> and ].<ref>{{cite news|url=http://economictimes.indiatimes.com/News/News_By_Industry/Reverse_swing_It_may_be_an_open_affair_for_gays_lesbians/articleshow/3186187.cms|title=Reverse swing: It may be an open affair for gays, lesbians|publisher=]|date=2008-07-02|author=Vikram Doctor|accessdate=2009-07-02}}</ref> In 2008, a judge of the Bombay High Court also called for the scrapping of the law.<ref>{{cite news | url=http://timesofindia.indiatimes.com/Unnatural-sex_law_needs_relook_Mumbai_HC/rssarticleshow/3276516.cms | title=Unnatural-sex law needs relook: Bombay HC | accessdate=2009-02-12 | date=2008-07-25 | publisher=The Times of India | author=Shibu Thomas}}</ref> |
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The ] said that the ban violates international law. United Nations human rights chief ] stated that "Criminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified", and that the decision "represents a significant step backwards for India and a blow for human rights.", voicing hope that the Court might exercise its review procedure.<ref>{{Cite web|url=http://in.reuters.com/article/india-rights-gay-un/ban-on-gay-sex-violates-international-law-u-n-idINDEE9BB04N20131212|title=Ban on gay sex violates international law - U.N|last=|first=|date=12 December 2013|website=Reuters|access-date=4 November 2017}}</ref> |
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== Views of political parties == |
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=== Support === |
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], a member of the ruling party ] and the Home Minister, is on record shortly after the law was re-instated in 2013, claiming that his party is "unambiguously" in favour of the law, also claiming that "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”<ref>{{Cite web|url=https://www.telegraphindia.com/1131214/jsp/nation/story_17679913.jsp#.VROkUJOUeHw|title=BJP comes out, vows to oppose homosexuality|last=Rameshan|first=Radhika|date=13 December 2011|website=The Telegraph|access-date=}}</ref> ], BJP MP,Chief Minister of Uttar Preadesh, endorsed Radev's comments, saying he welcomes the verdict and will "oppose any move to decriminalise homosexuality."<ref name=":0">{{Cite web|url=http://www.gaylaxymag.com/latest-news/political-leaders-react-to-supreme-court-judgement-on-sec-377/#gs.jTP9N1c|title=Political Leaders React To Supreme Court Judgement On Sec 377|last=Jyoti|first=Dhrubo|date=12 December 2013|website=Gaylaxy|archive-url=https://web.archive.org/web/20140511041143/http://www.gaylaxymag.com/latest-news/political-leaders-react-to-supreme-court-judgement-on-sec-377/#gs.jTP9N1c|archive-date=2014-05-11|dead-url=yes|access-date=3 November 2017}}</ref> |
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The ] made it clear that it will oppose any amendments to the section if it comes in Parliament for discussion, calling homosexuality "unethical and immoral."<ref>{{Cite web|url=http://www.news18.com/videos/politics/samajwadi-party-on-section-377-655768.html|title=Homosexuality Is Unethical And Immoral: Samajwadi Party|last=|first=|date=12 December 2013|website=News 18|access-date=3 November 2017}}</ref> ] stated that they support the Supreme Court decision as "It is completely against the culture of our nation."<ref name=":0" /> |
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=== Opposition === |
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Finance Minister and BJP member ] has a different view from Rajnath Singh, saying that "Supreme Court should not have reversed the Delhi High Court order which de-criminalised consensual sex between gay adults" and "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.”.<ref name=":1">{{Cite web|url=http://www.catchnews.com/national-news/most-indian-political-parties-back-lgbt-rights-a-rainbow-in-sight-1449397534.html|title=Increasing support for gay rights from BJP leaders. A rainbow in sight?|last=Hans|first=Namit|date=14 February 2017|website=Catch News|access-date=3 November 2017}}</ref><ref>{{Cite web|url=http://www.huffingtonpost.in/2016/02/03/section-377_0_n_9146832.html|title=The BJP And Its 377 Problem|last=Roy|first=Sandip|date=3 February 2016|website=HuffPost|access-date=3 November 2017}}</ref> BJP spokesperson ] said her party supports decriminalization of homosexuality. "We are for decriminalizing homosexuality. That is the progressive way forward.”<ref>{{Cite web|date=|url=http://www.livemint.com/Leisure/XCOl7cJw5t3DgnQZsFYIFO/BJP-supports-decriminalization-of-homosexuality-Shaina-NC.html|title=BJP supports decriminalization of homosexuality: Shaina NC}}</ref> |
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In December 2013, ] vice-president ] came out in support of LGBT rights and said that "every individual had the right to choose". He also said "These are personal choices. This country is known for its freedom, freedom of expression. So let that be. I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement", he said. The LGBT rights movement in India was also part of the election manifesto of the Congress for the 2014 general elections.<ref name=":1" /> Senior Congress leader and former Finance Minister ] expressed his disappointment, saying we have gone back in time and must quickly reverse the judgement.<ref name=":0" /> He also said that "Section 377, in my view, was rightly struck down or read down by the Delhi High Court judgement by Justice AP Shah."<ref>{{Cite web|url=http://www.uniindia.com/court-should-take-relook-at-section-377-after-today-s-verdict-chidambaram/india/news/969519.html|title=Court should take relook at Section 377 after today's verdict: Chidambaram|last=|first=|date=24 August 2017|website=United News of India|access-date=4 November 2017}}</ref> |
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The ] revised its position, the leader Dattatreya Hosabale reportedly saying, "no criminalisation, but no glorification either."<ref>{{Cite web|url=https://economictimes.indiatimes.com/news/politics-and-nation/section-377-unlike-rss-bjp-shies-away-from-taking-a-stand-on-homosexuality/articleshow/51464248.cms|title=Section 377: Unlike RSS, BJP shies away from taking a stand on homosexuality|last=Tiwari|first=Ravish|date=19 March 2016|website=The Economic Times|access-date=3 November 2017}}</ref> |
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After the 2013 verdict, the ] put on their website: <blockquote>"The Aam Aadmi party is disappointed with the judgment of the Supreme Court upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The Supreme Court judgment thus criminalizes the personal behavior of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times. Aam Aadmi Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law."<ref name=":1" /></blockquote>] of ] said the SC order was retrograde and that criminalizing alternative sexuality is wrong.”<ref>{{Cite web|url=http://www.thenewsminute.com/article/section-377-where-does-each-party-stand-36408|title=Section 377: Where does each party stand?|last=|first=|date=November 29, 2015|website=The News Minute|access-date=3 November 2017}}</ref> |
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], leader of ], did not support the Supreme Court decision, calling homosexuality practical and constitutional. He added that "This happens in society and if people believe it is natural for them, why is the Supreme Court trying to stop them?"<ref name=":0" /> |
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] of the ] said that he is disappointed at a personal level and this is not expected in the liberal world we live in today.<ref name=":0" /> |
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== 2009 judgement == |
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] of 2 July 2009 declared portions of section 377 unconstitutional w.r.t consensual sex among adults]] |
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{{main|Naz Foundation v. Govt. of NCT of Delhi}} |
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The movement to repeal Section 377 was initiated by ] in 1991. Their historic publication ''Less than Gay: A Citizen's Report'', spelt out the problems with 377 and asked for its repeal. chronicles this early history. As the case prolonged over the years, it was revived in the next decade, led by the ], an activist group, which filed a ] in the ] in 2001, seeking legalisation of homosexual intercourse between consenting adults.<ref name="Chronology">{{cite web|url=http://ibnlive.in.com/news/chronology-8yearlong-legal-battle-for-gay-rights/96152-3.html|title=Chronology: 8-year-long legal battle for gay rights|publisher=CNN-IBN|accessdate=2009-07-02}}</ref> The Naz Foundation worked with a legal team from the ] to engage in court.<ref>{{cite web |url=http://www.legallyindia.com/2009070276/News/lawyers-collective-overturns-anti-gay-law |title=Lawyers Collective overturns anti-gay law |author=Kian Ganz |date=2 July 2009 |work=] |publisher= |accessdate=9 April 2011}}</ref> In 2003, the ] refused to consider a petition regarding the legality of the law, saying that the petitioners, had no '']'' 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.<ref>{{cite web|url=http://us.rediff.com/news/2006/feb/03gay.htm?q=tp&file=.htm|title=Gay Rights is matter of Public Interest: SC|publisher=Rediff News|date=2006-02-03|author=Sheela Bhatt|accessdate=2009-07-07}}</ref> 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.<ref>{{cite news|url=http://articles.timesofindia.indiatimes.com/2008-05-20/india/27743991_1_decriminalise-homosexuality-gay-couple-pil-on-gay-rights|title=Delhi HC to take up PIL on LGBT rights|publisher=The Times of India|date=2008-05-20|author=Shibu Thomas|accessdate=2009-07-07}}</ref> 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.<ref>{{cite web|url=https://www.amazon.com/author/rajeshtalwar|title=Amazon.com: Rajesh Talwar: Books, Biography, Blog, Audiobooks, Kindle|website=www.Amazon.com|access-date=30 December 2017}}</ref> |
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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.<ref>{{cite web|url=http://www.dnaindia.com/report.asp?newsid=1165375|title=Centre divided on punishment of homosexuality|publisher=DNA|date=}}</ref> 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.<ref>{{cite web|url=http://www.livemint.com/2008/11/07220242/Delhi-high-court-all-set-to-ru.html|title=Delhi high court all set to rule on same-sex activity petition - Livemint|website=www.Livemint.com|access-date=30 December 2017}}</ref> On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated.<ref>{{cite news|url=http://articles.timesofindia.indiatimes.com/2009-06-12/india/28184786_1_anti-gay-law-veerappa-moily-ashok-row-kavi|title=Moily signals rethink on anti-gay law|publisher=The Times of hindustan|date=2009-06-12|accessdate=2009-07-07}}</ref> |
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Eventually, in a historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section,<ref name="CNNIBN">{{cite web|url=http://ibnlive.in.com/news/delhi-high-court-legalises-consensual-gay-sex/96148-3.html|title=Delhi High Court legalises consensual gay sex|publisher=]|accessdate=2009-07-02}}</ref> legalising consensual homosexual activities between adults.<ref name=BBC1>{{cite news|url=http://news.bbc.co.uk/2/hi/south_asia/8129836.stm|title=Gay sex decriminalised in India|publisher=]|accessdate=2009-07-02 | date=2009-07-02}}</ref> 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 ] and Justice ] 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. |
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The two-judge bench went on to hold that: |
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{{cquote|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. |
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Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. |
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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.<ref name="Judgement">{{cite web|url=http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf|title=Naz Foundation v. NCT of Delhi|publisher=Delhi High Court|accessdate=2009-07-02|deadurl=yes|archiveurl=https://web.archive.org/web/20090826035913/http://lobis.nic.in/dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf|archivedate=26 August 2009|df=dmy-all}}</ref>}} |
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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.<ref name="CNNIBN"/> |
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A batch of appeals were filed with the ], challenging the Delhi High Court judgment. On 27 March 2012, the Supreme Court reserved verdict on these.<ref name='The Hindu 2012'>{{cite news|title=Verdict reserved on appeals in gay sex case|work=The Hindu|date=27 March 2012|accessdate=3 October 2012|location=New Delhi, India|url=http://www.thehindu.com/news/national/article3250607.ece}}</ref> After initially opposing the judgement, the ] ] decided not to file any appeal against the Delhi High Court's verdict, stating, "insofar as criminalises consensual sexual acts of adults in private was imposed upon Indian society due to the moral views of the British rulers."<ref name='The Hindu 2012' /> |
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==2013 judgement== |
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{{main|Suresh Kumar Koushal vs. Naz Foundation}} |
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==Legislative action== |
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On 18 December 2015, ] member ] of the ], whose leaders ] and ] had earlier expressed support for LGBT Rights,<ref>{{cite web|url=http://www.dnaindia.com/india/report-statements-of-sonia-rahul-gandhi-and-kapil-sibal-on-section-377-exposes-character-of-congress-leaders-baba-ramdev-1934573|title=Statements of Sonia, Rahul Gandhi and Kapil Sibal on Section 377 exposes character of Congress leaders: Baba Ramdev - Latest News & Updates at Daily News & Analysis|date=13 December 2013|website=DNAIndia.com|access-date=30 December 2017}}</ref> introduced a ] to replace Section 377 in the Indian Penal Code and decriminalize consensual same-sex relations. The bill was defeated in first reading, 71-24.<ref name="indianexpress.com">{{cite web|url=http://indianexpress.com/article/india/india-news-india/shashi-tharoors-bill-to-decriminalise-homosexuality-defeated-in-ls/|title=Shashi Tharoor’s bill to decriminalise homosexuality defeated in Lok Sabha|date=18 December 2015|website=IndianExpress.com|access-date=30 December 2017}}</ref> For his part, Tharoor expressed surprise at the bill's 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.<ref name="indianexpress.com"/> |
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In March 2016, Tharoor tried to reintroduce the private member's bill to decriminalize homosexuality, but was voted down for the second time.<ref>{{cite news|url=http://www.thehindu.com/news/national/tharoors-bill-to-decriminalise-gay-sex-defeated-again/article8342075.ece|title=BJP thwarting Bill on gays: Tharoor|date=11 March 2016|work=The Hindu|accessdate=22 May 2016}}</ref> |
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==2016 judgement== |
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On 2 February 2016, the final hearing of the curative petition submitted by the ] and others came for hearing in the Supreme Court. The three-member bench headed by the Chief Justice of India ] said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.<ref name="Indian Express" /> |
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==Right to privacy== |
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On 24 August 2017, the Supreme Court of India in its landmark judgement held that Right to Privacy is a fundamental right protected under Article 21 and Part III of the Indian constitution. The judgement mentioned Section 377 as a "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy." In the judgement delivered by the 9-judge bench, ] (who authored for Justices ], ], ] and himself), held that the rationale behind the Suresh Koushal (2013) Judgement is incorrect, and the judges clearly expressed their disagreement with it. ] agreed with Justice Chandrachud's view that the right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. He further went on to state that the majoritarian concept does not apply to Constitutional rights and the Courts are often called upon to take what may be categorized as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India.<ref name=":2" /><blockquote>“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”<ref name=":2" /> </blockquote><blockquote>“Their rights are not “so-called” but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.”<ref name=":2" /> </blockquote>However, as the curative petition (challenging Section 377) is currently sub-judice, the judges authored that they would leave the constitutional validity to be decided in an appropriate proceeding. Many legal experts have suggested that with this judgement, the judges have invalidated the reasoning behind the 2013 Judgement, thus laying the ground-work for Section 377 to be read down and the restoration of the 2009 Judgement of the High Court, thereby decriminalising homosexual sex.<ref>{{cite web|url=http://www.livelaw.in/privacy-bench-affirms-lgbt-rights-disagrees-with-suresh-koushal-judgment-on-377-ipc/|title=Legal experts on 377 and Right to Privacy|accessdate=24 August 2017}}</ref><ref>{{cite web|url=http://www.thehindu.com/todays-paper/tp-opinion/target-section-377/article19563070.ece|title=The Hindu on 377 and Right to Privacy}}</ref> |
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According to ] there is a strong possibility that the Constitution bench examining the curative petition is bound to go by the Supreme Court judgement. He further said that there is "very little scope now" for those in support of Section 377.<ref>{{Cite web|url=https://thewire.in/170810/ap-shah-377-right-to-privacy/|title=Right to Privacy Judgment Makes Section 377 Very Hard to Defend, Says Judge Who Read It Down|last=|first=|date=25 August 2017|website=The Wire|access-date=4 November 2017}}</ref> |
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==Eminent Personalities Case (2018)== |
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{{main|Navtej Singh Johar v. Union of India}}In 2018, the five judge constitutional bench of the Supreme Court started hearing the challenge to IPC. In a surprising move, the Union Government did not take a position on the issue and left it to the "wisdom of the court" to decide on Section 377. The petitioners invoked the right to sexual privacy, dignity, right against discrimination and freedom of expression to argue against the constitutionality of Section 377. |
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The court seemed sympathetic to petitioners' plea and after hearing them for four days, the court reserved its verdict on , 2018. The bench pronounced its verdict on 6 September 2018.<ref>{{Cite news|url=https://www.ndtv.com/india-news/section-377-supreme-court-verdict-tomorrow-1911822|title=Section 377 Verdict By Supreme Court Tomorrow: 10-Point Guide|work=NDTV.com|access-date=2018-09-05}}</ref> Announcing the verdict, the court reversed its own 2013 decision of restoring Section 377 by ending the ban.<ref>{{Cite news|url=https://www.ndtv.com/india-news/homosexuality-no-longer-a-crime-in-india-supreme-court-ends-controversial-section-377-1912202?browserpush=true|title=One India, Equal In Love: Supreme Court Ends Section 377|work=NDTV.com|access-date=2018-09-06}}</ref><ref>{{Cite web|url=https://www.aljazeera.com/news/2018/09/india-decriminalises-gay-sex-landmark-verdict-180906051219637.html|title=India decriminalises gay sex in landmark verdict|website=www.aljazeera.com|access-date=2018-09-06}}</ref> |
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==See also== |
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*] |
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*] |
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==References== |
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{{reflist|2}} |
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==External links== |
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* , Arvind Narrain & Brototi Dutta, 2006. |
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* |
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* (Mobile) |
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{{Indian Penal Code navbox}} |
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{{LGBT in India}} |
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{{DEFAULTSORT:Section 377 Of The Indian Penal Code}} |
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] |
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