Section 377 of IPC states that 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 or in simple words any form of unnatural sex such as homosexuality etc. is criminalized in India.
Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Section 377 ban acts of homosexuality as well as some act of heterosexuality which are not natural like anal or oral sex.
• In Naz foundation v/s Govt of Delhi case, Delhi High Court upholds that section 377 is in violation of Fundamental Rights of the constitution such as Article 14, 15 or 21 etc. and consensual homosexual sex between adults has become decriminalized in India.
• In 2013, Supreme Court De criminalizes the homosexuality by reversing the judgment of Delhi HC and upholding the constitutional validity of section 377. Further SC says that it is the work of parliament to make or amend the legislation and parliament shall make endeavor to remove such controversial provisions form statue books of India. However judiciary might be criticized for this judgment as SC uphold many laws or legal provisions as null and void such as National Judicial Appointment Commision (NJAC) act or section 66A of IT Act etc.
• In 2014, Supreme Court directed government to declare transgender as 'third gender' and to be given reservation under OBC quota.
Reasons in favor of section 377
• Many child activists criticize Delhi HC judgment to decriminalize section 377 as it is needed to be on the statute book to tackle cases of child abuse. But after enactment of Protection of Children from Sexual Offences (POCSO) Act 2012, there is no need of section 377 in child sexual abuse cases.
• Homosexuality or other forms of sex are criticizes as these are against the law of nature.
• Further homosexuality is against the norms or morals of society and religion. But nothing can be prohibited on the basis of religion or norms prevalent in society.
• A hard scientific truth is that any sex other than natural cause of many serious ills in the human beings. For example homosexuals are more prone to sexual transmitted diseases like AIDS etc than any normal person.
• Section 377 decriminalization may have following implications in India:
- Sex ratio may further decline if more people would adopt for homosexuality.
- Students and Army people might oppted for homosexuality to remove stress.
• A moral wrong becomes a legal wrong only when its consequences are for society and not just the person/s committing it.
Arguments against Section 377
• Section 377 is in violation of Right to Privacy and Right to Life as you can't restrict the freedom of consenting people as far as their freedom is not hurting anyone else.
• This section is just an instrument of exploitation and it is almost not possible to decide what type of sex 2 consenting individuals are having in private. It has been noted that section 377 is mostly used to harass sex workers and AIDS/HIV affected people.
• Any person can be arrested on the base of suspicion like any two males are holding their hands while walking on the road.
• British's, who had imposed this inhuman provision on people of India, has removed this kind of provision from their law.
• There have been many positive developments in favor of Lesbian, Gay, Bisexual and Transgender (LGBT) community on the international front. In May 2015, Ireland legalized same-sex marriage. The country which had decriminalized homosexuality in 1993 became the first country to allow same sex marriage a national level by popular vote.
• In June 2015, the US Supreme Court ruled that same sex marriages were legal. Near home, Nepal legalized homosexuality in 2007 and the new Constitution of the country too gives many rights to the LGBT community.
• France, UK, Canada, United States, Australia and Brazil have de-criminalized homosexuality. Other countries like Belgium, Brazil, Canada, France, Iceland, Ireland, Luxembourg, Norway, Portugal, South Africa, Spain, Sweden and Uruguay allow either same sex marriage or a civil union.
India currently stands with a host of countries such as Nigeria, Ghana, Iran, Saudi Arabia, Afghanistan, Mauritania, Qatar and Pakistan which criminalizes homosexuality.