Section 377 of IPC- Is Homosexuality a Criminal Offence?

Introduction

The term “homosexuality” describes the attraction between individuals of the same sex. The word is derived from the Greek homos, which means “the same.” In India, homosexuality has been a topic of debate for thousands of years. Hindu literature has adopted a variety of stances on gay themes and characters. Part 377 of IPC has grown and become a special section that displays inclusion for the LGBTQ community. Same-sex weddings and relationships have become an integral part of society.

Historical Background

What was then considered criminal behaviour in Britain was largely made criminal behaviour under IPC. The Buggery Act of 1533, which Queen Elizabeth I reenacted in 1563 and which set a precedent for the subsequent criminalization of sodomy in the British colonies, stipulated that acts of sodomy were punishable by hanging.

The Buggery Act of 1533 served as the inspiration for Section 377 of IPC. The fact that Parliament has never modified this statute since it was passed should be noted at this point. Because this rule is founded on moral and ethical principles that view sex solely from the perspective of procreation, homosexuality is viewed as being unnatural.

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Definition of Section 377 of IPC

Section 377 of IPC:

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 a fine.

Explanation of Section 377 of IPC:

When we try to fully comprehend the word, we discover that Unnatural Offence simply indicates sexual relationships that are counter to nature. The term also uses the phrase “against the order of nature” without more explanation, leaving it up to the courts to interpret. 

The phrase “unnatural offence” refers to sexual perversity, and consent is completely irrelevant in the event of unnatural offences, with the party consenting being equally accountable as an abettor. The depth of the section can be understood with the help of legal advice.

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Essential ingredients of Section 377 of IPC

1. The accused engaged in carnal intercourse with a man, a woman, or an animal.

2. Such contact was against the natural order, and 

3. The individual accused of the conduct acted willingly.

Constitutional Validity of Section 377 of IPC

In the case of Naz Foundation v Government of Delhi & Ors, the constitutional legality of Section 377 of IPC was challenged in the Delhi High Court. In this case, it was alleged that Section 377 of IPC violates the basic rights provided in Articles 14, 15, 19, and 21 of the Constitution by concealing consensual sexual activity between two adults in private. This petition was later dismissed due to its unsustainable nature.

In 2016, five petitions were filed in the Supreme Court by LGBTQ activists arguing that Section 377 of IPC infringed on their “rights to sexuality, sexual autonomy, choice of sexual partner, life, and privacy granted by Part-III of the Constitution.”

It reinstated the criminalization of sexual relationships between same-sex adults in 2013 after the Delhi High Court decriminalized it in 2009. However, the highest court’s five-judge bench made it plain on July 10, 2018, that it would not consider curative petitions and would instead hear new petitions.

Decriminalizing Section 377 of IPC

The Supreme Court’s Constitution Bench recognized that society must gradually adapt and that the LGBT community has a right to live with dignity. It has also been shown that sexual orientation is natural and inherent in an individual and is influenced by biological variables. Persons of the same sex who engage in ‘consensual sexual actions’ cannot be punished or subjected to unfair treatment under Section 377 of IPC.

The Supreme Court has also focused emphasis on the eradication of social stigma associated with Section 377 of IPC  and remarked that “hundred and fifty-eight years is too long a period for the LGBT community to experience the indignities of denial.”

The justices also emphasized the right to privacy, which was declared a fundamental right under Article 21 of the Indian Constitution in August 2017. Non-consensual sexual intercourse against all adults, whether man or woman, acts of bestiality, and carnal intercourse against children, whether boy or girl, shall continue to be prohibited under Section 377 of IPC. Carnal intercourse with an animal is still illegal.

Other cases relating to Section 377 of IPC

1. In Suresh Kumar Koushal’s Case (2013)The Supreme Court reversed a 2009 Delhi High Court decision that decriminalised homosexual behaviour and decriminalized homosexuality.The Supreme Court argued that in the previous 150 years, only 200 people had been convicted under Section 377 of IPC. The Supreme Court ruled that it was up to the legislature to decide whether section 377 of IPC  should be repealed.

2. In K.S. Puttaswamy vs. Union of India (2017) The Indian Supreme Court found that the Fundamental Right to Privacy is intrinsically tied to life and liberty and hence falls within Article 21 of the Indian Constitution.Physical autonomy, according to the Supreme Court, is an essential component of the right to privacy. This bodily autonomy extends to an individual’s sexual preference.

3. Anuj Garg vs. Hotel Association of India  the concepts of Section 377 of IPC was established. In that instance, the act in question was likewise pre-constitutional legislation, and while it was saved under Articles 14, 15, and 19 of the Indian Constitution, it was determined to be legal. The statute could have been held to be valid legislation , but given the changes that have occurred in both the domestic and international arenas, such a law can now be declared invalid.

4. In National Legal Services Authority v. Union of India, the right to express one’s preferred gender identity as well as the ability to self-identify as male, female, or transgender was granted. The Supreme Court ruled in NALSA that a person’s gender identification and sexual orientation are protected under their right to life, dignity, and autonomy. NALSA fueled India’s transgender rights movement.

Conclusion

For India’s LGBTQ community, the abolishment of Section 377 of IPC and the subsequent decriminalization of homosexuality represents a significant step forward. It also makes life easier for sexual minorities and brings India one step closer to achieving equality for all classes of people. We must acknowledge that both genders are equal if India is to have complete equality, and the transgender movement is moving us in that direction. People can seek legal recourse with the help of a lawyer online if their rights are violated.