Under section 377, unnatural offences is defined as 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.
Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
How the law came to be?
Sodomy was first recorded as a crime in the Common Law treatises of Fleta (1290) and Britton(1300), which said sodomites should be burnt alive.
In 1533, England passed the act for the punishment of the vice of Buggerie prescribing the death penalty for “unnatural sexual acts against the will of God”. The Buggery Act re-enacted in 1556, set a template for British colonies.
In 1821, new laws came in. In 1861, punishment was reduced to ten years to life term in England and Wales.
In India, the act for improving the Administration for criminal justice in the East Indies, in 1828 made sodomy punishable with death.
In 1837, a draft penal code proposed to punish “unnatural lust”, the report of the Indian law Commission refused to discuss it.
The IPC along with section 377, was assented to by the governor general on October 6, 1860, after passage by the legislative council.
The early battles regarding section 377
One of the first legal challenges to section 377 came in 1994, when the NGO AIDS Bhedhbhav Virodhi Andolan(ABVA) filed a petition for its repeal, after Kiran Bedi, then the superintendent of Tihar Jail refused to allow health workers to distribute condoms to male inmates. The repression of same sex love was spotlighted by the strident rightwing oppsition to Deepa Mehta’s fire, which showed two women abandoned by their husbands finding love and solace in each other, in 1998.
While ABVA failed to follow through with its petition, leading to it being dismissed in 2001, Naz foundation filed the first major case against section 377 in December 2001(Naz foundation vs. Govt. of Delhi & othrs.) A two judge Delhi High Court bench of chief justice BC Patel and justice Badar Durrez Ahmed dismissed the case in 2004 terming it as a mere academic challenge to the constitutionality of a legislative provision. A review petition too was dismissed.
Victory and defeat in the case of section 377
As the LGBTQI moment gained steam across India and several organisations like Voices against 377 and a spectrum of activist joined the battle, the Supreme Court ordered Delhi High Court to hear the case again. In a landmark decision July 2, 2009, the High Court decriminalised section 377, ruling that consenting intercourse between two adult was not illegal. A division Bench of chief Justice Ajit Prakash Shah and Justice S Murlidhar said :” We declare that section 377 IPC insofar criminalises consensual sexual acts of adults in private, is violative of article 21, 14 & 15 of the Constitution.” However, the court ruled, the provisions of section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.” (Naz foundation vs. Govt. of NCT of Delhi & othrs, 2009).
The verdict was hailed by the LGBTQI community and sections of civil society such as academics and mental health professionals.