By T. V. Antony Raj
During the reign of Henry VIII, the Parliament of England passed The Buggery Act 1533. Thomas Cromwell, the chief minister to the King was the brain behind it.
This Act defined buggery as an unnatural sexual act, “the detestable and abominable Vice of Buggery committed with Mankind or Beast” against the will of God and Man. It was England’s first civil sodomy law. Earlier, the ecclesiastical courts dealt such offences before. This Act was later defined by the courts to include only anal penetration and bestiality.
The Offences against the Person Act 1828 replaced the Buggery Act, but buggery remained a capital offence until 1861.
In 1861, during the British rule, the Indian Penal Code introduced Section 377, modelled on the Buggery Act of 1533. It makes sexual activities “against the order of nature”, illegal
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.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section
All over the world many still consider homosexuality as taboo and as a “deviant behaviour”. But lesbian, gay, bisexual and the transgender (LGBT) communities want homosexuality decriminalised.
On July 2, 2009, in response to a petition challenging the constitutional validity of Section 377 of the Indian Penal Code (IPC) which criminalized consensual sexual activities between homosexual adults conducted in private, the Delhi High Court struck down portions of Section 377 concerning gay sex as unconstitutional. The judgment held that Section 377 infringed upon fundamental rights under Articles 14, 15, 21 of the Constitution of India, and declared the section unconstitutional to the extent that it criminalized private consensual sexual activity between adults.
Some religious bodies challenged this judgment of decriminalizing Section 377 in the Supreme Court of India.
On December 11, 2013, in Suresh Kumar Koushal vs Naz Foundation case, the Supreme Court of India held that Section 377 providing punishment for gay sex was constitutionally valid and overturned the judgement of the Delhi High Court, thereby shutting the small window for gay rights opened by the Delhi High Court. The Supreme Court held that amending or repealing section 377 should be a matter left to Parliament, not the judiciary.
On Saturday, November 28, 2015, speaking at the Times LitFest, late finance minister Arun Jaitley of BJP and his predecessor P Chidambaram of Congress came out in support of gay rights.
Arun Jaitley is the first leader from the BJP to have supported decriminalization of consensual sex among gay adults. Speaking in his capacity, he said, “When millions of people world over are having alternative sexual preferences, it is too late in the day to propound a view that they should be jailed. The Delhi High Court’s view appears more acceptable.”
Speaking just afterwards, Chidambaram, who was also speaking in his capacity, said that the Delhi High Court verdict decriminalizing gay sex was a wonderful one and the Supreme Court should have stayed with it.
On February 6, 2016, a three-member bench of the Supreme Court reviewed curative petitions submitted by the Naz Foundation and others and decided that they would be reviewed by a five-member constitutional bench.
On August 24, 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttaswamy judgement. The Court also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine.
This judgement was believed to imply the unconstitutionality of section 377.
In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment.
On Thursday, September 6, 2018, in the judgment given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R F Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra, the Supreme Court of India pronounced the much-awaited verdict on a clutch of petitions challenging the constitutional validity of section 377 of the IPC which criminalises consensual gay sex. It ruled unanimously in Navtej Singh Johar vs Union of India that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex.”
However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality stay in force.