Section 377: Tracing the history from 1861 to 2018

Sep 06, 2018, 19:30 IST | mid-day online desk

As the country's apex court decriminalised homosexuality bringing a 'dawn of freedom' to the LGBTQ community, here's a timeline of the case and the landmark judgments that have taken place over the course of time in Section 377

Section 377: Tracing the history from 1861 to 2018
Representational Picture

The Supreme Court on Monday rejected the government's request to adjourn the hearing on Section 377 of the Indian Penal Code that criminalises homosexuality and makes gay sex as an offence. Today, a five-judge Constitutional bench, led by Chief Justice of India Dipak Misra began hearing the petitions challenging it. 

After months of deliberations, the Supreme Court on Thursday delivered a landmark judgment as it struck down the Section 377 of the Indian Penal Code (IPC) which criminalised homosexuality. A five-judge Constitution bench, headed by Chief Justice of India (CJI) Dipak Misra and comprising Justices D Y Chandrachud, Rohinton Fali Nariman, A M Khanwilkar and Indu Malhotra, issued the verdict on a bunch of petitions filed to scrap the law. The bench had earlier reserved its verdict for July 17.

Criminalising gay sex is irrational and indefensible, observed the CJI while delivering the verdict. The Lesbian Gay Bisexual Transgender community has same rights as any other citizen, the CJI added. Respect for each other's rights and others are supreme humanity, observed the bench unanimously while saying that the right to live with dignity is right.

About Section 377
Section 377 of the IPC deals with "unnatural offences," and holds "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."


Timeline of Section 377
1861: The year Section 377 was introduced

Section 377 was introduced by British India during the Pre-Independence era which was modelled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. The section defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalising anal penetration, bestiality, and homosexuality, in a broader sense.

Jump to 2001: Naz Foundation filed a petition against Section 377 in Delhi High Court

Over the course of time and years, Section 377 had sparked numerous controversies with activists challenging it in various ways. In 2001, Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court as the law was pre-dated and not valid in the 21st century. They filed a lawsuit to allow homosexual relations between consenting adults.

2003: Delhi HC dismisses Naz Foundation plea

The Delhi High Court in the year 2003 dismissed the petition filed by Naz Foundation which was seeking a ban on Section 377. The High Court back then said that the body had no standing in the matter. The Naz Foundation took the appeal further before apex court of the country to dismiss the hearing. The Supreme Court thereby instructed the Delhi High Court to reconsider the case.

2009: In an iconic judgment Delhi High Court decriminalised homosexuality

In a landmark decision, the Delhi High Court decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India. This decision was welcomed by activists and people of the LGBTQ community.

Delhi Queer
Delhi Queer Pride 2015

2012: Supreme Court overturns Delhi HC order

Post the Delhi High Court's historic judgment, various appeals were made before the Supreme Court, challenging the High Court’s authority to change the law. Three years after the Delhi High Court's iconic decision in December 2012, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising of Justice G S Singhvi and Justice S J Mukhopadhaya observed that the Delhi HC had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBT,” and that in over 150 years less than 200 people were prosecuted for committing an offence under the section.

The Supreme Court then recommended that the Parliament addresses the matter because only they had the power to amend the existing laws and bring about a new law in the country.

2015: Shashi Tharoor’s Private Member Bill was voted against in the Parliament

After the 2014 Lok Sabha elections, the Narendra Modi-led government was sworn-in. They said that they would take a decision regarding Section 377 only after the Supreme Court's judgment. In a written reply addressing to the Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Supreme Court.”

A year later, when Member of Parliament Shashi Tharoor introduced a private member’s Bill to decriminalise homosexuality, the Lok Sabha voted against it.

2016: Five petitioners move to SC seeking justice over Section 377

Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath, and business executive Ayesha Kapur before the apex court. The petition, all of which were filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.” The 5 men and women who challenged a ban on homosexuality were all from different walks of life. 

2018: A dawn of new era for Section 377 and LGBTQ community

In the year 2018, the apex court began the hearing of the cases and petitions files on Section 377. A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra, began hearing petitions challenging Section 377 and seeking decriminalisation of the same. 

United Nations India lauded the Supreme Court's decision for striking down a 'key component' of IPC's Section 377 which criminalises "specific sexual acts between adults" and said the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons. It also hoped the ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons.

Bollywood celebrities such as Karan Johar, Sonam Kapoor, Farhan Akhtar and director Hansal Mehta amongst others have welcomed the Supreme Court's judgment on legalising homosexuality. Here's how the Supreme Court's move was welcomed by people from all walks of life:

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