What is Section 377? :
Section 377 of the IPC states: ‘Whoever voluntarily has carnal intercourse against the order of nature with any man, #woman or #animal, shall be shall be punished with 1[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.’
Section 377 was first adopted in 1861, but in 2009, the Delhi High Court described the law as a #violation of the rights that were granted by the Constitution but following this, four years later, the Supreme Court overruled the order and reinforced the criminalisation of #homosexuality.
This was done because the Supreme Court believed that it was the Parliament’s responsibility to scrap laws and the decision to re-criminalise the law was criticised by the LGBTQ #community in India, also being seen as a setback for #human rights.
India’s Supreme Court ruled Thursday that the country’s colonial-era law criminalizing same-sex relations is unconstitutional, paving the way for LGBTQ equality in India and beyond.
The ruling comes after years of both advances and setbacks for #LGBTQ people in India. The country’s so-called sodomy law, Section 377 of the Indian Penal Code, punished “carnal intercourse against the order of nature” with up to life in prison. The Delhi High Court struck down that law in 2009, writing that it violated the fundamental rights to life, liberty, and equality guaranteed by the Indian Constitution. The court noted how #criminalization of same-sex relations harms the lives of LGBTQ people.
But just as Indian activists had earned a hard-fought victory, some individuals and religious groups appealed the verdict. A two-judge panel of the Indian Supreme Court overturned the decision in 2013, ruling that amending the law was the responsibility of the legislature. The 2013 decision derided the Delhi High Court for “overlook[ing] that a miniscule fraction of the country’s #population constitutes lesbians, #gays, #bisexuals or #transgenders and in [the] last more than 150 years less than 200 persons have been prosecuted.”
But on Thursday, a different five-judge constitutional bench of the Indian Supreme Court unanimously overruled the 2013 decision. Chief Justice Dipak Misra explained that “the law had become a weapon for harassment for the #LGBTcommunity,” adding that “any discrimination on the basis of #sexuality amounts to a violation of fundamental rights.”
Spanning hundreds of pages and citing decisions from several countries, the Indian Supreme Court’s judgment is striking for its emphasis on the value of “inclusiveness”—broader in scope than the privacy-based arguments in earlier sodomy law cases such as the U.S. Supreme Court’s 2003 decision in Lawrence v. Texas.
“The ideals and objectives enshrined in our benevolent Constitution can be achieved only when each and every individual is empowered and enabled to participate in the social mainstream and in the journey towards achieving equality in all spheres,” the Supreme Court of India stated. “This can be achieved only by inclusion of all and exclusion of none from the mainstream.”