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Scratching At The Surface

Friday, January 19, 2018

The Supreme Court has decided to reconsider Section 377 of the IPC, which directly affects the LGBTQ community. The 48hrs Team tells you about the decision, and gets people’s perspective on the sensitive issue

Section 377 of the Indian Penal Code (IPC) has been a matter of controversy for a long time. Many petitions have been filed by activists and LGBTQ members requesting the Supreme Court (SC) to decriminalise the section of the IPC. In the news recently, the issue surrounds a bench of judges deciding whether to revisit the SC decision to uphold Section 377. The bench was appointed to look into a petition that talks about gender identity and sexual orientation, and the right to privacy. So, since the debate about Section 377 may well be starting up again, we take a look at the evolution of the laws and beliefs condemning and criminalising homosexuality and other sexual orientations that have evolved in India, and where the LGBTQ community stands in places around the world.



The British, who ruled India during this era, deemed homosexual activities as unnatural and introduced Section 377. Modelled on the Buggery Act of 1533, today, as a part of Chapter 16 of the Indian Penal Code, the section states that, “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.”


On 26th January, the Constitution of India comes into effect with no change to Section 377. The law remains in effect, criminalising homosexuality.


The first movement to repeal Section 377 is started by AIDS Bhedbhav Virodhi Andolan, India’s first AIDS activist movement. Their publication, ‘Less than Gay: A Citizen's Report’, highlighted the problems with Section 377 and asked for its repeal.


The above issue is documented in an article titled ‘Gay Rights in India’, written by activist Vimal Balasubrahmanyan and published in the Economic and Political Weekly, a weekly peer-reviewed academic journal covering all social sciences.


Naz Foundation, an NGO fighting for gay rights in India, files a PIL in Delhi High Court for the decriminalisation of homosexuality among consenting adults.


The Delhi High Court refuses to consider the petition regarding the legality of the law. Activists file a review petition in the same year, which is dismissed by the High Court on technical grounds. The activists then approach the Supreme Court.


Image credit: Cineberg /

The Supreme Court sends the case back to the Delhi High Court for reconsideration, since Naz Foundation had the standing to file a PIL. The High Court takes into consideration BJP leader BP Singhal’s plea, opposing the decriminalisation of homosexual intercourse.


The case comes up for hearing in the Delhi High Court, which refuses the plea made in the beginning. Since the Government was undecided on its position to decriminalise homosexuality, the Home and Health Ministries take a contradictory stand, which causes the Supreme Court to take more time to make a decision on the issue. The Supreme Court finally finishes hearing the seven-year-old petition.


The movement gains support from the Ministry as India’s new law minister, Veerappa Moily, admits that Section 377 might be out-dated. The Delhi High Court sides with decriminalising homosexual intercourse amongst consenting adults, overturning a 150-year-old judgement. Later, in the same month, Suresh Kumar Koushal and other religious organisations come together to challenge the Delhi High Court’s decision in the Supreme Court, against Naz Foundation.


The Supreme Court begins to hear the case and decides to reverse the verdict passed by the Delhi High Court.


The order given by the Delhi High Court, decriminalising homosexual intercourse, is overturned by the Supreme Court stating that amending Section 377 is a matter for the Parliament. The Government files petitions against the verdict.


The Central Government’s petition to review the verdict given against homosexual intercourse is dismissed by the Supreme Court.


Image credit:reddees /

A five-member constitutional bench is set up to review the petition filed by Naz Foundation, in a second hearing of the Supreme Court as they agree to reconsider the decision of 2013. Shashi Tharoor introduces a private member bill to replace Section 377. The bill is defeated in the first reading.


Five well-known members of the LGBTQ community file a petition with the Chief Justice of India, T. S. Thakur, seeking appropriate orders for the legalisation of homosexual intercourse. For this, a two-judge bench of the Supreme Court is set up to hear the petition. Tharoor tries to reintroduce the private member bill, but is voted down again.


The Supreme Court of India holds that the Right to Privacy is a fundamental right as filed under the Constitution of India. It gives the country’s LGBTQ community the freedom to express their sexual orientation. However, homosexual intercourse still remains a crime.


Section 377 is referred to a larger bench by the Supreme Court for a final hearing on the proceedings of the 2013 petition, which suggests reconsideration.


Image credit:

We’ve discussed India and our Section 377, but let’s journey across the world to see the stance that different regions have taken against or for the LGBTQ community.

Homosexual activity is mostly frowned up

  • Relationships between males are illegal in as many as 72 countries, while relationships between females are illegal in 45 countries.
  • In Iran, Sudan, Saudi Arabia and Yemen, homosexuality is still punishable by death under Sharia law. In Somalia and Northern Nigeria, several states have adopted Sharia law and treat homosexuality as punishable by death.
  • 14 countries, including India, criminalise same-sex relationships, which carry a penalty of 14 years to life in prison. 
  • While countries such as China, Turkey, Japan, Ukraine and Romania, among others, do not recognise same-sex marriages or civil unions, they have don’t have laws that penalise the LGBTQ community.
  • On the other hand, 123 countries and union territories have decriminalised homosexual acts.

Same-sex marriage

A growing number of Governments around the world have passed laws and regulations that recognise and legalise same-sex marriage. As of December 2017, 26 countries have fully embraced same-sex marriage. Some notable countries include:

The Netherlands: The Netherlands became the first country in the world to legalise same-sex marriage, almost 18 years ago, in December 2000. The Dutch Parliament passed a bill, which allowed the practice and gave same-sex couples the right to marry, divorce and even to adopt children.

The United Kingdom: While the countries of England and Wales legalised same-sex marriage in 2013, after Queen Elizabeth II gave her royal assent to the bill, the law did not apply to Scotland and Northern Ireland, as they are semi-autonomous and have separate legislative bodies. But, while the Scottish Parliament legalised it in February 2014; there is still a ban on same-sex marriages in Northern Ireland.

Australia: The most recent country to allow same-sex couples to marry, the Australian Parliament passed the legislation in December 2017.

Image credit: weniliou /


We asked people across the city about their opinion on the issue. Here’s what they had to say about Section 377 and people’s rights

A prehistoric law
Section 377 is history. In fact, it is prehistoric, and it has no place in modern times! India is a nation that spreads love and compassion. Homophobia is imported, packaged and delivered by our colonial rulers. It is time that we say #377QuitIndia.
– Harish Iyer, activist

Shouldn’t infringe personal freedoms
What we have seen in the past three years of the BJP Government is that we do not have any hopes from the Parliament to make changes in the law. The only hope we have is from the Judiciary. We are positive that the Judiciary is going to refer it to the constitutional laws, so what religion or society says won’t matter. The only question that stands is whether the constitution allows an individual to have a sexual relationship in privacy with a consenting adult, and if so, we are hopeful that the SC will acknowledge the right of the LGBTQ community by decriminalising Section 377. If we want an inclusive and diverse society, then Section 377 has to go. It is ridiculous because it criminalises an individual just on the basis of sexual orientation and the punishment is at par to that of rape or murder, which is absolutely bizarre. 
– Ankit Bhuptani, gay rights activist

A basic right
I believe Section 377 needs to be removed, as one should be allowed to make their life choices independent of societal pressure. Being part of the LGBTQ community doesn’t affect a person’s work, nor anyone else’s, so how can anyone declare others criminals based on their sexual orientation? I think that morally, it will take India some time to reach a place where they can be open about being homosexual, but we need to take a step towards that goal, and decriminalisation should be the first step.
– Vanalika Bhuta, engineering student

Liberalism should prevail
The right to privacy applies to all human beings as a personal right guaranteed by Constitution, which should be practised voluntarily without any forceful nature and with consent. It should never be forced or it becomes evil for a society also. Section 377 is an evil to society. The reasons to practise and such practices should be based on liberalism and not forced on anyone.
– Shivam Srivastav, lawyer

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