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Government's views from time to time on Sec. 377 of IPC

Dated: August 13, 2018

Section 377 if the IPC criminalises unnatural offences, i.e.  homosexuality and sexual intercourse with animals. It was devised to criminalise homosexual relationships and sodomy.

The section was introduced in IPC by Lord Macaulay. It was introduced in the Britain in the years 1838 but was enacted into IPC after the First war of Independence, 1857. This section is modelled on Buggery Act 1533, which criminalised bestiality (sexual intercourse with animal), anal penetration and in a broad way, homosexuality. Then came the Offences against the Person Act, 1828; which replaced the Buggery Act. The new act made it easy to prosecute the rapist as well as the Homosexuals. This was the main base and inspiration of the section 377 of IPC.

India still follows the law, while UK has decriminalised Homosexuality, by the Sexual Offences Act 1967

The Naz Foundation Case : - in the year 2001 Naz Foundation filed a case challenging the constitutionality of Sec. 377 of the IPC in the Delhi High Court. The main contention of the suit was to allow homosexual relationship between consenting adults and Sec. 377 be applicable only to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. But this case was dismissed by the High Court in the year 2003, stating the  Naz Foundation had no standing in the matter. The Naz Foundation moved an appeal to the Supreme Court. The Supreme Court directed the High Court to reconsider the case. This reconsideration led to the historic judgement of 2009, which decriminalized consensual sexual acts between adults. Moreover it was also mentioned in the judgement that, judgement was to be in force and the act of homosexuality was to remain decriminalised until the Parliament  decides on the same.

After this decision by the High Court, many appeals were filed against this in the Supreme Court; challenging the High Court’s authority to change the law. The Supreme Court in 2012 overturned the decision of the High Court, stating the reason that the power to amend the law was with Parliament and not with the High Court and hence the Judgement is in violation of the Constitution.

Recent trends: - The religious institutions have opposed to the decriminalisation of the offence under Sec. 377. But recently the Government had announced that it won’t oppose the decriminalisation of homosexuality. This is the first time Government of India has taken such a decision in the case.