Section 377
- Section 377 of IPC – which came into force in 1862 – defines unnatural offences.
- It says, “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 10 years, and shall also be liable to fine.
2009 Judgement (Delhi HC)
- Following a PIL by Delhi-based Naz Foundation, an NGO fighting for gay rights, the Delhi HC on July 3, 2009, struck down Section 377 of the IPC, holding that it violated the fundamental rights of life and liberty and the right to equality as guaranteed in the Constitution.
- The HC held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.
2013 Judgement (SC)
- The Supreme Court reversed the 2009 HC verdict in December 2013 and upheld the constitutional validity of Section 377 of IPC, while giving the power to the legislature to formulate a law on homosexuality.
- It observed that only a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.
2014 order (Transgenders)
- In the April 2014 verdict, hailed by gender rights activists, the apex court directed the government to declare transgenders a ‘third gender’ along with male and female.
- It also asked the Centre to include them in the OBC quota.
- Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.
- The Transgender Persons (Protection of Rights) Bill, 2016 was a result of this order.
2017 verdict on Right to Privacy (SC) (Puttuswamy judgement)
- In August 2017, the Supreme Court, in a landmark verdict, declared right to privacy a fundamental right, ushering in hope for the gay and LGBT community.
- The apex court had concluded that privacy included at its core the preservation of personal intimacies and that sexual orientation was 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.
2018 Sc Verdict: Section 377 unconstitutional
- A five-judge Constitution Bench of the Supreme Court decriminalised homosexuality, with a prayer to the LGBTQ community (Lesbian, Gay, Bisexual, Transgender and Queer) to forgive history for subjecting it to brutal suppression.
- Bench unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code was clearly unconstitutional.
- Section would apply to “unnatural” sexual acts like bestiality. Sexual act without consent continues to be a crime under Section 377
