The controversial Section 377 of the Indian Penal Code that deals with “unnatural offenses” criminalises homosexuality in India.
The Indian Penal Code is a 153-year-old act that was introduced during the British rule in India. Section 377 deals with 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 term which may extend to ten years, and shall also be liable to fine.”
Naz Foundation v. Govt of NCT of Delhi
Naz Foundation, a non-governmental organisation that supports gay rights had filed a Public Interest Litigation (PIL) in the Delhi High Court in 2001 seeking legislation of homosexual intercourse between consenting adults.
In 2006, the National AIDS Control Organisation filed an affidavit stating that Section 377 violated LGBT rights.
The Delhi High Court declared Section 377 as unconstitutional with respect to sex between consenting adults on 2 July, 2009 in Naz Foundation v. Govt of NCT of Delhi. The court claimed that Section 377 violated the fundamental rights to equality before law, freedom from discrimination and life and personal liberty under Articles 14, 15 and 21 respectively of the Constitution of India.
The Supreme Court overturned this ruling and upheld the provisions of the constitution on 11 December, 2013. The Supreme Court ruled homosexuality to be a criminal offense setting aside the 2009 judgment passed by the Delhi High Court. The judgment declared that it was upto the parliament to amend the law and the judiciary did not have the mandate to rule on it.
Future of the LGBT community
Homosexuality is considered a taboo in India. Sex between people of the same gender is punishable by law.
Following the ruling in 2009 by the Delhi High Court, Gay people found hope and several came out of the closet sensing a bright future. However, on 28 January, 2014, the Supreme Court dismissed the review petition filed by the Central Government, Naz Foundation and several others.
The community can now file a curative petition to have the law overturned or can seek the parliamentary route to have the law amended.