Section 377 of the Indian Penal Code

Section 377 of the Indian Penal Code  criminalizes sexual activities “against the order of nature”, which includes sexual activities by Gay and Lesbians .  The section states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished.” This has led to widespread discrimination and persecution of the LGBT community in India, who face imprisonment and societal stigma for their sexual orientation.

The 2013 Naz Foundation Case

In 2009, the Delhi High Court ruled that Section 377 of the Indian Penal Code was unconstitutional, and decriminalized homosexuality in India. This landmark judgment was welcomed by the LGBT community, as it marked a significant step towards the recognition of their rights.

However, this judgment was challenged by a group of individuals in the Supreme Court of India, who argued that the High Court had exceeded its jurisdiction in striking down a law that had been in existence for over 150 years. In 2013, the Supreme Court set aside the Delhi High Court judgment and reinstated the criminalization of homosexuality under Section 377 of the Indian Penal Code.

The Supreme Court’s decision in the Naz Foundation case was a major setback for the LGBT community in India. It not only criminalized homosexual sexual activities but also perpetuated the stigma and discrimination faced by the community.

The Recent Developments

In 2018, a five-judge Constitution Bench of the Supreme Court of India, in a historic judgment, decriminalized homosexuality and struck down Section 377 of the Indian Penal Code. The judgment was widely celebrated by the LGBT community and marked a significant step towards the recognition of their rights.

However, in April 2021, the Supreme Court referred a writ petition filed by gay and lesbian members of the LGBT community to strike down Section 377 of the Indian Penal Code to a larger Bench. The Bench will reconsider the constitutional validity of Section 377, and its decision will have far-reaching consequences for the rights of the LGBT community in India.