A timeline of the section 377. (Express File Photo by Abhinav Saha)
The Supreme Court on Monday rejected Centre’s request to adjourn the hearing on Section 377 of the Indian Penal Code that criminalises homosexuality and makes gay sex an offence. Today, a five-judge Constitutional bench, led by Chief Justice of India Dipak Misra began hearing the petitions challenging it.
Section 377 deals with “unnatural offences,” and holds “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.” As the SC hears the petition, here’s a timeline of the case and the landmark judgments:
1861: Introduction of Section 377
Section 377 was introduced by British India, modelled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. It defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalising anal penetration, bestiality and homosexuality, in a broader sense.
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2001: Naz Foundation files petition against Section 377 in Delhi High Court
Over the years, Section 377 had sparked numerous controversies with activists challenging it in various ways. In 2001, Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court. They filed a lawsuit to allow homosexual relations between consenting adults.
2003: Delhi HC dismisses Naz Foundation plea
The Delhi High Court dismissed the Naz Foundation petition, saying the body had no standing in the matter. The Naz Foundation appealed the dismissal to the Supreme Court in 2006, which instructed the Delhi High Court to reconsider the case.
2009: Delhi HC decriminalises homosexuality
In a landmark decision, the Delhi High Court decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.
2012: Supreme Court overturns the HC order
After HC’s judgment, various appeals were made to the Supreme Court, challenging the High Court’s authority to change a law. In December 2012, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising Justice G S Singhvi and Justice S J Mukhopadhaya observed that the HC had overlooked the fact that a “minuscule fraction of the country’s population constitutes LGBT,” and that in over 150 years less than 200 people were prosecuted for committing an offence under the section.
The Supreme Court then recommended that the Parliament address the matter because only they had the power to amend the existing laws.
2015: Shashi Tharoor’s Private Member Bill
After the Narendra Modi-led government was sworn-in in 2014, it said it would take a decision regarding Section 377 only after the SC judgment. In a written reply to Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Supreme Court.”
A year later, when Shashi Tharoor introduced a private member’s Bill to decriminalise homosexuality, the Lok Sabha voted against it.
2016: Five petitioners move SC over Section 377
Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. The petition, filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”
2018: SC begins hearing on Section 377
A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, begins hearing petitions challenging Section 377.