A Quick Guide To Section 377


Gay sex is no more a crime in India. Today, 6th September, the Supreme Court passed a landmark judgment – it struck down the controversial Section 377. A 5-judge SC bench headed by CJI Dipak Misra and Justice A M Khanwilkar ruled that consensual sexual relationships between same-gender adults in private do not fall foul of section 377 IPC

This also reverses the 2013 verdict, in which the court had upheld 377, denying the LGBT community the right of choice and sexual orientation. By doing so, it directly outlawed 2.5 million homosexual citizens and sparked a long debate over the regressive section. 
Here’s all you need to know about Section 377 and the legalities of the Supreme Court judgments.

Section 377: Homosexual Activity = Criminal Activity

Introduced in 1860, the Indian Penal Code declares that those indulging in “unnatural carnal intercourse” will be subject to life imprisonment and hefty fines.

In 2009, the Delhi High Court stood up for the gay community

They declared that the part of Section 377 that criminalises unnatural sex is “unconstitutional”. The Court went so far as to legalise sexual activities between consenting same-sex adults and declared that banning them from such acts was a “violation of fundamental rights”.

But the Supreme Court reversed this verdict in December 2013

Homosexual activity became punishable once again. They also added that further changes to Section 377 (ie: amending or repealing it) would be left to Parliamentarians and not to the courts.

Naturally, the LGBT community fought hard to get rid of Section 377

…and many individuals and organizations sympathetic to Lesbian, Gay, Bisexual and Transgender (LGBT) rights have also protested against this section over the years. Congress MP Shashi Tharoor even attempted to introduce a Bill in Parliament that would decriminalize the section.

A Delhi-based NGO brought this matter up in the Supreme Court (again)

The final hearing of the case presented by the Naz Foundation was heard on February 2nd, 2016. In a landmark verdict, the Supreme Court transferred the debate to a five-judge constitutional bench to decide if Section 377 amounts to denial of the rights to privacy and dignity.

Supreme Court’s judgment on Right to Privacy in 2017 could lead to scrapping of Section 377 

The court ruled that privacy included at its core, the preservation of sexual orientation among other things. This could be used as the reason by the petitioners for ensuring that the Chief Justice would set up the five-judge bench to hear the petitions against the section as soon as possible.

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