What was section 377? How was it struck down?

Priyal Verma

Student | Posted on 1-Apr-2019

Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced during the British rule.It is an act that criminalises homosexuality referred to as 'unnatural offences.' It also goes on to say that whoever indulges in such activities shall be punished with imprisonment for life.

Letsdiskuss

For the longest time,there has been a stigma revolving around homosexuality and people used to voice their disapproval of the concept very freely in the form of hate crimes.It was considered unnatural in it's essence and was unaccepted by the society for it was a very alien concept for heterosexuals beings which even went on to the extent of calling it a mental condition.There seemed no end to the brutal cases of hate crimes of verbal abuses that happened which obviously made them furious.This instigated a certain fire in homosexuals who felt that the society should not have the power to tell them who to love and who not to.So,several rallies and pride parades started coming out everywhere with people with the pride flag drawn across their bodies with posters that spoke out their mind.These parades became very frequent and hence,pushed everyone to question their prejudices about the whole concept and creating more awareness about the same.People started becoming more understanding and open and hence,heterosexual individuals also supported their case.Then,finally the morning of 6th September of 2018 was a remarkable day as the Supreme Court of India ruled that the application of Section 377 to consensual homosexual sex between adults was "unconstitutional,indefensible and manifestly arbitary."This gave hope to the people in our democracy and that love wins.

Ruchika Dutta

Teacher | Posted on 2-Apr-2019

Section 377 of the Indian Penal Code, which has now struck down, criminalized homosexuality.

For Indians, homosexuality was nothing new or “unnatural”, until the Indian perceptions for adulterated with the western notions. Yes, it was in 1861, during the British Rule in India, that Section 377 was introduced. It called being indulged in the carnal intercourse with the person of the same sex an “unnatural offense” which needed to be punished severely, as it was against the order of nature.

(Courtesy: NewsClick)

The actual section reads thus:

377. Unnatural offenses: 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.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

(Source: Wikipedia)

Much to the relief of the queer community in India, the section was ruled out on September 6, 2018, by the Supreme Court of India. The Supreme Court allowed gay sex among consenting adults in private and emphasized on the fact that sexual orientation can be diverse and is natural in all its form.

Also read: Would the homosexuality be accepted in society after Article 377 has been scrapped?

The journey and the struggle, however, from 1861’s rule and 2018’s ruling out of it, was not an easy task. It involved many protests, discussions, dissents, and whatnot!

In 2009, the High Court of Delhi stated that Section 377 violated Articles 14, 15, and 21 of the Constitution of India. Article 14 assures equality before the law to all the citizens of India, and article 15 saves them from discrimination on the grounds of religion, race, caste, sex, or the place of birth. Article 21 guarantees personal liberty to all citizens.

This brings forth the humanized versions of those which were marginalized for their sexual preferences. The Supreme Court, however, overturned the judgment of Delhi HC, calling it “legally unsustainable”.

In 2014, the directions were given to the government to declare transgender as the “third gender” and provide them OBC quota. Then there were the continuous filing of cases and petitions from 2016 to 2014, by various Human Rights activists and others.

(Courtesy: NDTV.com)

Also read: What will be the likely fate of the LGTBQ community in India as SC reviews article 377?

All this resulted in the scrapping off of Section 377 from the Constitution of India.