Article 377

Section 377 criminalises sexual acts

“against the order of nature” and has
undergone many twists and turns ever
since the Delhi High Court
decriminalised it in 2009.
Later, in 2013, the Supreme Court
overturned the decision. But, with the
apex court deciding to revisit its
decision on Monday, there is a renewed
hope among the members of the LGBT
community.
What is Section 377?

Section 377 of IPC – which came into

force in 1862 – defines unnatural
offences. Section 377, titled “unnatural
offences”, was enacted by the British
after we lost our First War of
Independence in 1857. They imposed
their religio-cultural values upon us.
What was the High Court ruling on
Section 377 in 2009?

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. “Section 377 of the IPC,
in so far as it criminalises consensual
sexual acts of adults in private, is
violation of Articles 21 (Right to
Protection of Life and Personal
Liberty), Article 14 (Right to equality
before law) and Article 15 (Prohibition
of discrimination on grounds of
religion, race, caste, sex or place of
birth] of the Constitution,” a division
bench of Justice A P Shah and Justice S
Muralidhar said in a 105-page order.
 Why did the Supreme Court reverse
the High Court verdict?

The Supreme Court reversed the 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.
Justified its order by saying, “The High
Court overlooked that 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.”
How will the Right to Privacy
judgment affect Section 377?

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,” the SC held. The SC
decision will definitely strengthen
arguments for decriminalisation of
homosexuality.
Consider POCSO, which deals with
sexual offences against children. This
law is not only gender neutral qua
sexual assault, but it also defines sexual
assault broadly, including acts covered
by Section 377. Thus, the law that
would be applicable to a minor person
is gender neutral and defines sexual
assault broadly. On attaining
adulthood, however, the same person
would be faced with a gender-specific
rape law, which no longer considers
anal sex and oral sex “unnatural” for
women but still does for men.

Following the Delhi 2012 gangrape

and murder incident, the IPC was
amended, and rape included anal and
oral sex without consent. This means
that with consent, these acts are no
longer an offence between
heterosexual adults. Yet, these acts
continue to be an offence under Section
377.
A husband is never guilty of raping his
own wife even if he has sex with her
without her consent. Her consent is
irrelevant. The fact of marriage grants
him immunity from prosecution.
Consent is overridden by the law in
these cases.
Take the case of adultery. It is an
offence for which a husband can bring a
criminal case against the man who has
sex with his wife “without his consent”.
Her consent is irrelevant.
As far as the private affair of an
individual is concerned, within the four
corners of the house, nobody has the
right to interfere or peep into it.
Everybody has the right to lead the life
they want. But such choices should not
spill over onto the streets by way of an
endorsement of this style of life so as to
attract other people.

Why is this such an issue? Because we

are a religious society. Be it a Hindu,
Muslim, Christian, or Sikh, a couple, by
which I mean husband and wife, does
not have sex outside wedlock. Islam is
very particular about the way couples
should conduct their lives. Sex is
allowed only in married life. Sex within
the same gender, or sex out of wedlock,
is prohibited in Islam. It is a crime.

But we are living in a democratic

society governed by our Constitution.
And the Constitution gives certain
fundamental rights to citizens and one
of the rights is the choice to lead the life
one wants. Nobody has the right to
disturb and intrude into someone’s
private life.
 conclusion

This irrationality in the law can be

traced to a lack of understanding of the
role of consent in sexual matters and
the negation of the right to define one’s
own sexual identity.