All you need to know about Section 377 IPC – Unnatural Offences and relations b/w LGBTQ community

Section 377 of the Indian Penal Code has been a subject of debate in our nation for decades due to its far-reaching implications on our society given its wide ambit. The infamous provision gained even more attention with the growing pride movement across the world, with citizens across the world demanding legalisation of same-sex relations and more inclusion for the LGBTQ community in the legal framework.
 

What is Section 377 of the Indian Penal Code (IPC)?

Section 377 is a provision of the Indian Penal Code, India's primary criminal code which covers the substantive aspects of criminal law. Section 377, titled & lsquo Unnatural offences', provides the punishment for carnal intercourse against the order of nature with any man, woman or animal. It punishes a person guilty of unnatural offences with imprisonment of life or imprisonment of a term which may extend to 10 years along with a fine. A bare reading of Section 377 may not portray its true meaning, but this provision has been used over the decades to criminalise gay sex by terming it & lsquo against the order of nature' making it punishable with life imprisonment. Along with gay sex, the provision also covers under its ambit both anal as also oral sex between consenting heterosexual adults in private. Thus, an entire section of the community was affected at large by the reading of Section 377 criminalising same sex relationships. This led to the very provision facing challenge in court on multiple occasions as detailed below.
 

A Step to Decriminalise S 377: Naaz Foundation Judgment: Delhi High Court 2009

In recent times Section 377, the 160-year-old provision of the Indian Penal Code, came to be challenged first in the historic Naaz foundation case which was heard by the Delhi High Court which passed its judgment in 2009. This case in particular was instituted by the NGO Naaz foundation in 2001 which fought a tough 8-year-long battle to protect the right to full personhood of gay members of the society which was being denied by the criminalisation of gay sex. The foundation argued that the provision was contrary to the fundamental rights guaranteed to every person under Article 21 of the Constitution of India. Finding success finally in 2009, the Delhi high Court in its momentous judgment decriminalised the aspect sexual intercourse between consenting adults of the same gender under Section 377. However, the Court in its judgment did not strike down the entire provision thereby maintaining the criminality in law of anal and oral sex even between adult heterosexual adults. The Delhi High Court judgment was soon overturned by the Supreme Court in 2013 which recriminalized consensual sex between two adults of the same gender. The Supreme Court also dismissed the review petitions filed against its judgment.
 

Changes made in Section 377 by SC through its 2018 Judgment

The Supreme Court's judgment of 2013 overturing the Naaz foundation judgment of the Delhi High Court saw numerous curative petitions being filed appealing the apex court to re-examine its verdict. Acting upon the curative petitions, the matter was taken up once more and the case was referred to a larger bench of the Supreme Court, which commences hearings in the matter on 10.07.2018.

With a five-judge bench now tasked with the duty, hearings commenced on the curative petitions filed by S. Johar, Journalist Sunil Mehra, Chef Ritu Dalmia, Business executive Ayesha Kapur and Hotelier Aman Nath, each of whom represented the community affected by the recriminalisation of same sex relationships under Section 377. The law of the land had seen a considerable change since the Supreme Court first announced its judgment on Section 377 in 2013 overturning the Delhi High Court's ruling. The Supreme Court had in 2017 pronounced a historic judgment upholding the right to privacy and had stated in clear terms that the right to privacy and protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article 14, 15 and 21. Further, in 2012 the central government had also enacted the Protection of Children from Sexual offences Act. The Naaz foundation judgment by the Supreme Court had been criticised by child right activists stating that doing away with criminalisation of gay sex would undermine the law protecting children form sexual offences. Therefore, the introduction of POCSO, 2012 had also taken care of this aspect as the new law covered this domain of offences against children in great detail, providing stringent punishments for each offence. The Supreme Court thus was presented with an opportunity to re-examine the issue of Section 377 in 2018 in the face of these changed circumstances. The five-judge bench of the Supreme Court reserved its judgment on 17^th July after hearing the various participants for four days as also various gay rights activists. Pertinently, the Supreme Court had restricted this re-appreciation only on the issue of sexual relations between consenting adults of the same gender and stated that the aspects of Section 377 which affected heterosexual adults and children would remain in the statute. Finally on 6^th September 2018, the five judge bench in a unanimously ruled that Section 377 in so far as it criminalises sexual relations between consenting adults of the same gender was unconstitutional.
 

Under what circumstances can S 377 be invoked even after 2018 Judgment?

& quot If anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of S.377 is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between two individuals without consent of any one of them would invite penal liability under Section 377 IPC& quot . These points were noted by then Chief Justice Deepak Misra and Justice AM Khanwilkar in the nearly 500-page judgment. This clearly means that bestiality continues to be a punishable offence. Moreover, if 2 adults engage in 'carnal intercourse against the order of nature', without the consent of one of them, the said person/individual can be charged under S. 377 IPC, irrespective of his/her (sexual) orientation.
 

Why you need a Lawyer?

Although the Supreme Court has ruled on Section 377, the section still stands in the penal code and has only been partially rendered unconstitutional. The section still affects heterosexual consenting adults indulging in anal and oral sex. Thus, it is important to take the advise and consultation of a trained criminal lawyer when faced with a charge under Section 377 or when rendered a victim of aggression under the provision. A lawyer will help best protect your interests and ensure that you stay on the right side of justice. You can also ask a lawyer online a free legal question using LawRato's Ask a Free Question service.

Advocate Chikirsha Mohanty

4.0 | 2+ user ratings Greater Kailash - 1, Delhi
5 years

GET LEGAL HELP

GET LEGAL HELP

Googling your legal issue online?

The internet is not a lawyer and neither are you.
Talk to a real lawyer about your legal issue.

TALK TO A LAWYER