What is Section 377?
Section 377 of the India Penal Code is an archaic law that was introduced during the British era in 1860s and makes gay sex a crime for which the punishment can be a life term.
New Delhi: The Supreme Court today said that a larger group of judges would re-consider and examine the constitutional validity of Section 377 of the Indian Penal Code (IPC), a law that criminalizes sexual activities “against the law of nature”, re-opening the debate over homosexuality in India. The top court will now re-visit its 2013 verdict that criminalizes gay sex.
Deciding on a petition by five persons who say they are living in fear of being prosecuted, the top court said, “The section of people who exercise their choice should never remain in a state of fear.” A three-judge bench of Supreme Court headed by the Chief Justice of India, Deepak Mishra said, “Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.”
Here’s all you need to know about Section 377
Section 377 of the Indian Penal Code states, “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.” Simply put, Section 377 is an archaic law that was introduced during the British era in 1860s and makes gay sex a crime for which the punishment can be a life term.
This also has implications for heterosexuals, as consensual sexual acts of adults – oral and anal sex in private – are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.
In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the constitution. Religious groups, however, had appealed against the decision in the Supreme Court.
In 2013, the Supreme Court cancelled the Delhi high court order and re-criminalized homosexuality. It said that it was the job of the parliament to decide on scrapping laws.
The decision that gay sex is a criminal offense was seen as a major setback for human rights and was also widely criticized. While prosecutions under section 377 have been rare, activists have said that the police used the law to harass and intimidate members of the LGBTQ communities.
After the 2013 Supreme Court’s decision, prominent BJP leader Rajnath Singh had said, “We support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.” On the contrary, senior BJP leader Arun Jaitley had said, “When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed.”
Congress leaders Rahul Gandhi, P Chidambaram, Shashi Tharoor, Trinamool Congress leader Derek O’ Brien, CPI (M) leader Brinda Karat, the Aam Aadmi Party among others had come out in support of the LGBT community and had said that homosexuality should be decriminalized.