Section 377 and LGBT rights: Here’s what you need to know

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By Samyukta Maindarkar

The Supreme Court has reversed the July 2009 ruling of the Delhi High Court decriminalising gay sex between consenting adults in private. In the world’s largest democracy and its second largest country, gay sex is illegal and the status of homosexuals has become that of criminals once again.

At the centre of this controversy is Section 377 of the Indian Penal Code (IPC), which the apex court has now upheld. However, many people are unaware of what this section exactly means.

Section 377 of the Indian constitution is a descendant of an archaic law from the colonial British rule, which described homosexual acts as “unnatural”. It was incorporated into the IPC in 1860. The section reads: “377. Unnatural offences — 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.”

In effect, the section defines all acts of carnal intercourse other than heterosexual penile-vaginal as against the order of nature, irrespective of consent, and punishable with up to life imprisonment.

According to the Lawyers Collective, section 377 lacks precise definition. Over the years, it has come to include all manner of “immoral” acts other than that considered “natural”.

Gay rights activists argue that section 377 violates articles 14, 15, 19 and 21 of the Indian constitution, which guarantee equality, freedom of expression and personal liberty to all its citizens. Upholding it will deny basic human rights to sexual minorities in the country. Further, they say, it will inhibit discussion on an issue already considered controversial and taboo, especially as discussion on sex and sexuality in any form is rare.

There have been arguments that upholding section 377 will lead to further alienation of LGBT persons and groups, and cause a severe setback to HIV/AIDS prevention efforts, especially among men who have sex with men (MSM). Gay rights NGO Naz Foundation, which filed the petition to decriminalise gay sex with the Delhi High Court, says this law has been used to blackmail and perpetuate violence against sexual minorities.

With this ruling – after a brief period that was considered a breakthrough in LGBT rights – India once again joins the ranks of countries such as Afghanistan, Iran, and Saudi Arabia, where homosexuality is considered a criminal offence and the penalty is life imprisonment or even death. After the recent laws in Russia that prohibit any kind of propaganda that views homosexuality in a positive light, this ruling is yet another setback in times that are seem to be seeing increasing legislation against homosexuality.

*Originally published on on December 11, 2013