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Author: Bhakti Khule, III year of BA LLB from Symbiosis Law School, Hyderabad



This law prevailed over British India was completely modelled on the Buggery act 1533 which enacted under the kingdom and rule of King Henry VII. This very section was drafted by Thomas Macaulay in the era 1838 and was brought into enforcement around 1860 in the very light of the First War of Independence 1857 also known as Sepoy Mutiny. This law defined Unnatural offences which were against the very will of God or Man known as ‘buggery’ acts. Under this act, anal penetration, bestiality and homosexuality as a whole was not allowed or criminalised.


The same beggary act in 1828 was repealed and replaced by offences against the Person act, 1828. This section widens the scope of unnatural offences and allowed easy prosecution and punishment of the rapist and homosexuals. The same act repealed by the British and replaced by the Offences against the person act, 1861. This specific act was considered as the inspiration and birth of Section 377 of the Indian Penal code in the coming future. Finally, the myth of Homosexuality was decriminalised by the UK Government by the very Sexual Offence Act, was seen that the Indian government still tend to follow the Archaic law written in the 1830s, while the British Government made Same-sex marriages legal in their country.


Section 377 had numerous controversies for many years and had been challenged in both the High courts and Supreme Court. In 2001, a non-governmental organisation named Naz foundation India challenged section 377 in Delhi High Court by filing petitions and lawsuits allowing homosexual relations between two consenting adults. They argued that the ambit of section 377 should be only applicable and used to non-consensual penile sex just involving minors. This very lawsuit led to the most historic judgement witnessed by Indian in centuries by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, which lead to the decriminalisation of section 377, and consensual sexual acts between two adults were allowed by the law henceforth. This judgement ruled enforced until the Parliament decided to amend section 377.


High Court’s authority to change the complete law was challenged by many appeals in the Supreme Court. While many such petitions and appeals were being filed in the Supreme Court challenging the Judgement and discretionary powers of the High Court of Delhi, Supreme Court dismissed numerous such petitions. Finally, on 11th December 2012, the Supreme Court with two-judge bench overturned and overrule the judgement given by the Delhi High Court by stating that power to amend the laws were with the parliament and did not come under the discretion of the High Court and such law was considered to be constitutionally unstable. And in the end, the Supreme Court gave all the powers to the Parliament to amend such laws.


It was no surprise that no party had willing to introduce the bill in front of the house on such a controversial topic, that too just before the General election 2014. Due to the NDA government which was in the ruling power, nobody wanted to risk and bring up this matter or issue into mainstream society. But the member of the parliament from Thiruvananthapuram and the former under Secretary-General of United Nations, Shashi Tharoor with the use of social media platform raise awareness regarding the same issue and signed a petition on the issue. And finally, after a long struggle and initiative, a private bill was introduced in Parliament. It was very sad to see that this bill was rejected immediately, even without having a glance at the bill. After a controversial introduction of the bill and many disagreements, this bill was presented before the house, which aimed at allowing adults to have consensual sexual intercourse. And the same section should be decriminalised.


At no point in all the history of independent India in all the cases, it has ever been easy to justify such a discriminatory act in the very light of the constitutional guarantee of equality and its promise to protect everybody, but protect those who do not belong to the majority. Yet many attempts were made occasionally to claim the prohibition against discrimination on the grounds of sex. It had a limited understanding of physical “sex” in all the terms of the male and female binary, which framers of the constitution had stipulated in the chapter on fundamental and legally provided rights. However, by the time, few people were willing to accept the narrow interpretation of the constitution to mean that prohibition against sex discrimination on the grounds of binary, gender identity, and sexual orientation.

The Indian Constitution is a very evolving document on its own and the Supreme Court being the apex court recognised that it can produce social reforms. When section 377 was addressed as unjustifiable criminalising of the section, the Supreme Court referred to the constitutional morality as well as recognised oppressions, many issues like diminishing healthcare to LGBT people were raised. The interpretation and so result drawn was the responsibilities of both state and society to work towards a more equal society and make the world a better place to stay for literally everybody.

Ancient Biblical more always said and suggested that the man, created in God’s image was granted dominion over all the earth’s other living beings including all the genders even women. However in the case of section 377, the underlying rationale of the law and its traces roots as conservative interpretations of Judeo- Christin scripture, rather than much to Indian Social Morality. Hence, India is always rooted in Patriarchal endorsed by scripture and hence law against homosexual acts like section 377 were prohibited.


In response to the very said petition of Decriminalisation of adult consensual sex, filed by the Delhi High Court of the Naaz Foundation, the Government of India stated that section 377 of Indian Penal Code could not be challenged because Indian Society, by and large, does not approve being of two same genders together or homosexuality. The government hence failed to recognise that the laws of India are to protect and promote human rights of all the citizen irrespective of any sort of discrimination and what it claims to be popular sentiments of the majority.

Even in all those cases the state does not perpetrate overt violation in itself, the existence of section 377 shows the violation of many fundamental rights in part III which are promised and guaranteed to all Indian citizens like the right to life and liberty, stated in the article 21, which also includes the right to health and privacy; the right to equality stated in article 14, under article 9, the freedom to speech, movement, assembly, to carry on any profession, or business and the right to reside. Hence, section 377 was violative of many fundamental rights and any such provision should be therefore deemed unconstitutional. Section 377 also contributed to a cultural injustice in some content. It is some sense tend to strengthen discriminatory social attitudes that implicate all of us in insidious ways. The morality shown in section 377 seeks to generate shame, secrecy and guilt around one’s sexuality due to the patriarchal society we live in. it disallowed all the citizens from exercising their rights positively defined as sexual rights by the Indian Constitution and had specific implications for same-sex desiring individuals and LGBTQ+ community as a whole.

Considering how the human rights are being violative of sexual minorities, we must keep in mind and recognise that violation takes place at the hands of the states and non-states like- families, the media and the other factors living in the Indian Society, as one cannot clap with one hand, we require two hands together to clap. The government of India had demanded the state to take preventive steps towards prevention, investigation, prosecution for the violation committed by the non-state part of the society due to the diligence. Hence, the laws like section 377 of the Indian Penal code only tends to formalise the unlawful and unjust agreement. The very unenviable status of heterosexuals framework who does not conform is being increasingly documented. Numerous reports, petitions and cases are being filed and brought out by the People’s Union of civil liberty shows us how the LGBTQ+ Community are repeatedly violated of their privacy rights guaranteed by the Indian Constitution.

Homosexuality in India is seen as “abnormal” that is best defended as individual freedom but not as a matter of Human rights. There are many more existing important issues other than examining oppression based on the sexual differences like- issues of poverty, gender, class and caste oppression. But this statement completely ignores the fact that sexuality is integrally linked to all structures of social oppression such as capitalism and caste or religious fundamentalism. It is very Hippocratic and ironic to say when human rights activists who claim to subscribe to the principles of indivisibility and inter-connectedness of rights, reduce sexual rights to the rights of a discrete minority. Sexual rights are integral to the broader human rights struggle for economic, political and social justice.


Nonetheless, today in the present day scenario there has been conflicting between non- heteronormativity and the practice of religion always. Courts nonetheless need to arbitrate disputes wherein one individual’s freedoms and rights on the subject of sexuality engage with any other individual’s freedoms and rights concerning the practice of faith or religion. This contention is especially true where the religion either supports or completely mandates discrimination against non-heterosexual persons.

Recognising that people who aren't heterosexual do now not belong in prison is simplest the first step in what's sure to be an extended manner of ensuring that anybody no matters wherein they belong at the spectrums of intercourse, gender, and sexual orientation revel in identical rights without being discriminated towards resulting from their private and personal identity.

The Supreme Court has previously provided the blueprint to ensure that people who are not heteronormative can enjoy equal participation and dignity as well as where the Indian Constitution applies equal citizenship to every person residing in the country. Ensuring that all the heterosexual are not left at mercy of the independent state is not at all same as granting their civil rights and privileges which heterosexual people take for granted.


After the very Supreme court judgement in Navtej Singh Johar vs. Union of India, after decriminalising gay sex and making it legal. Demand for gay marriages, adoption and inheritance rights have been increased after the very judgement.

Even after decriminalising section 377, presently bring in more new amendments by legislation is not possible as the mind-set of the people is still conservative and they are strongly against it. As Supreme Court took article 14 into consideration and article 21 to partial strike down section 377, it was duly possible because of the rights given to every citizen, or the majority population of India are still against the gay sex.

Now even if in India section 377 has been partial decriminalised. Still, inheritance rights, adoption and marriage id not allowed for the community. Hence, there is still a long way to go.


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