In a historic judgment, the Supreme Court of India has scrapped Section 377 of the country’s Penal Code, first introduced in 1861 during British rule (Indian Express). The section criminalized sexual activities including homosexual activities “against the order of nature”.
The demand for the scrapping of Section 377 was first raised by the Naz Foundation in 2001 at Delhi High Court. In 2009, court decriminalized sex between consenting adults of the same gender, but in 2013, the Supreme Court reversed the decision, citing (Times of India) that “Section 377 IPC (Indian Penal Code) does not criminalize a particular people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offense. Such prohibition regulates sexual conduct regardless of gender identity and orientation”.
Section 377 was modeled on the Buggery Act of 1533 passed during the reign of Henry VIII.
The decriminalization of Section 377 has been criticized or supported by different groups over the years, including politicians, campaigners and prominent individuals. In 2016, Shashi Tharoor, a Member of Parliament introduced the Indian Penal Code (Amendment) Bill, 2016, which sought to decriminalize Section 377. The bill was defeated (First Post) in the Indian parliament when 58 out of 73 members voted against it.
In 2017, the Supreme Court condemned discrimination stating that the protection of sexual orientation and equality was a core part of citizens rights. The court decided to revisit the ruling plea on decriminalizing Section 377 in January 2018.
In July 2018, a bench of five judges headed by Chief Justice Dipak Mishra began hearings on Section 377. As quoted in Deccan Chronicle, the top court felt that “once the criminality of consensual gay sex goes away, then related issues like social stigma and discrimination against the LGBTQ community will also go away.”
When the court asked for the ruling government’s stand on Section 377, Tushar Mehta, the solicitor general of India, told the court, “Let court decide, leave decision to wisdom of court.”
Here are some of the main points made by the ruling (Hindustan Times).