INTRODUCTION :

Section 377 of the Indian Penal Code criminalises consensual private

sexual acts between adults. It came into force in 1862.

The section came into force in 1861 during the British rule of India
(modelled on the Buggery Act of 1533) which criminalised sexual
activities "against the order of nature", including homosexual activities
.

Although the civil rights movement has gone to the extent to include a
greater part of the world, but there are only few organizations whose
major aim is to fight for the rights of the “Homosexuals”. The LGBT
(Lesbian-Gay-Bisexual-Transgender) activism has raised the issue of
sexuality and, in particular, alternative sexuality, and argues for its
'normalcy'. The state, on the other hand, has taken exception to such
democratization of 'desire' and has tried to 'discipline' it. The present
era of society is becoming much deeper and democratizing which
earlier was moreover privileged to a private sphere which now is
becoming more open for debate and discussion. Also, has been a
drastic development in the democratization in the sphere of ‘desire’.
Which significantly can’t be left un-noticed by the larger sect of
society. This review examines the provision in Penal Code of India that
criminalized private consensual sex between adults. Law had led to
serious discrimination against homosexual people.
1]Suffering from frequent beatings and blackmail attempts by police
and neglection from society.
2] NGOs working with sexual minorities have also been harassed
charged under Section 377, by stigmatizing homosexuality and
threatening gay
3]After an innovative, sustained, mass media campaign by activist’s
coalition brought together sexuality and LGBT who were previously
marginalized, with groups working in areas such as children's feminist
groups, showing that support for non-discrimination towards sexual
broad-based
4]Further legal and social changes are needed for LGBT individual’s
acceptance and equality within.
5]It is the matter of great concern for the world’s biggest democracy,
not only for the LGBT (Lesbian, Gay, Bisexual, Transgender) people
but also for the whole society because it is the question of validity and
protection of ‘fundamental rights’ which can be referred as the
structural base of democratic society and justice.

Lawyers have argued that the notorious Criminal Tribes Act, 1871,
which branded a number of marginalised population groups like
transgenders as “innately criminal” before it was repealed, drew
inspiration from Section 377. Though the 172nd report of the Law
Commission of India recommended the deletion of Section 377, no
action was taken. The penal provision says “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 10
years, and shall also be liable to fine.”

Legal History :

As part of Queen Mary I’s restoration of Roman Catholicism in 1553,

the Parliament of England expelled the offence of “buggery”, and
returned it to the control of Christian religious law. Mary was,
however, succeeded in 1558 by her Protestant half-sister Queen
Elizabeth I. In 1562, Parliament revived the felony of “buggery” in
English criminal law.
“Sithence which Repeal so had and made [in 1553], divers
evil-disposed Persons have been the bolder to commit the said most
horrible and detestable Vice   of Buggery ... to the high Displeasure
of Almighty God ... Be it enacted ... That the said Statute [of 1533] ...
shall ... be revived, and from thenceforth shall stand, remain and be in
full Force, Strength and Effect for ever, ... as the same Statute was at
the Day of the Death of the said late King Henry the Eighth ...”

It was this Act of 1562, making “buggery” a criminal offence

punishable by death, that was exported, directly or indirectly, to as
many parts of the British Empire as possible. In 1828, the 1562 offence
was replaced, for England and for all parts of India in which British
criminal courts had jurisdiction, by a new version, with identical
wording and an identical death penalty for England and India:
“every Person convicted of the abominable Crime of Buggery,
committed either with Mankind or with any Animal, shall suffer Death
as a Felon”.
Whether or not any man in India was actually convicted of “buggery”
and sentenced to death, between 1828 and the entry into force of the
Indian Penal Code on January 1, 1862, this criminal offence applied, at
least in theory, to:
“all Persons and all Places ... over whom or which the Criminal
Jurisdiction of any of His Majesty’s Courts of Justice erected or to be
erected within the British Territories under the Government of the
United Company of Merchants of England trading to the East Indies
does or shall hereafter extend”.

Delhi HC 2009 verdict​ :

We declare that Section 377 IPC, insofar it criminalizes consensual

sexual acts of adults in private, is violative of Articles 21, 14 and 15 of
the Constitution. The provisions of Section 377 IPC will continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal
sex involving minors. By 'adult' we mean everyone who is 18 years of
age and above. A person below 18 would be presumed not to be able to
consent to a sexual act. This clarification will hold till, of course,
Parliament chooses to amend the law to effectuate the recommendation
of the Law Commission of India in its 172nd Report which we believe
removes a great deal of confusion. Secondly, we clarify that our
judgment will not result in the re-opening of criminal cases involving
Section 377 IPC that have already attained finality. We allow the writ
petition in the above terms. CHIEF JUSTICE S. MURALIDHAR, J
JULY 2, 2009.
Eight years later, the Delhi HC decriminalised sex between 
consenting adults of the same gender by holding the penal 
provision "illegal".
In 2009, the Delhi High Court read down Section 377 to apply only to
non-consensual, penile, non-vaginal sex, and sexual acts by adults with
minors.
The issue of section 377 was rised by NGO NAAZ foundation , which
had in 2001
approached the Delhi High Court which had decriminalised sex
between consenting adults of the same gender by holding the penal
provision as "illegal". This 2009 judgement of the high court was
overturned in 2013 by the apex court which had also dismissed the
review plea against which the curative petitions were filed which are
pending

The apex court had commenced the hearing on the fresh writ petitions
challenging re-criminalisation of consensual gay sex between two
adults, rejecting the Centre's plea seeking postponement of the
proceedings by four weeks.
In December 2013, a two-judge Bench of the supreme court on appeals
filed by private parties, set aside the High Court’s judgment. It upheld
the criminalisation of gay sex while virtually denying the LGBTQ
community the right to sexuality, sexual orientation and choice of
partner.

In July 2018, a Constitution Bench, led by Chief Justice Dipak Misra,

re-opened the entire issue, saying a section of people could not live in
fear of the law which atrophied their rights to choice, privacy and
dignity.

How did it come about ?

Arguing for 20 IITians against Section 377, advocate Menaka

Guruswamy told the Supreme Court that the penal provision reduced
the LGBTQ community to the status of “unconvicted felons.” Hopes of
the community to lead a normal life got dashed when the Supreme
Court overturned the Delhi High Court’s verdict in December 2013.

But their decades-long struggle for dignity took a significant turn for
the better with the progressive NALSA judgment delivered by a
Supreme Court Bench, led by Justice K.S. Radhakrishnan.

This verdict recognised transgender people as ‘third gender,’

possessing rights, including marriage, adoption, divorce, succession
and inheritance. More importantly, it condemned discrimination on the
grounds of sex as a violation of the fundamental right to equality under
the Constitution.

In August 2017, the fight against Section 377 got a second major boost
when a nine-judge Bench of the court, led by the then Chief Justice of
India J.S. Khehar, upheld the right to privacy as a fundamental right
intrinsic to life and liberty.

This Bench ripped apart the December, 2013 judgment. The nine-judge
Bench, in its main opinion authored by Justice D.Y. Chandrachud,
underlined the impact of Section 377, saying it “poses a grave danger
to the unhindered fulfilment of one’s sexual orientation, as an element
of privacy and dignity.”

The two judgments signalled that the court was ready to change its
opinion on Section 377. They became the pillars on which the
petitioners based their case before the Constitution Bench

Why does it matter ?

Section 377 criminalises a section of people for being a sexual

minority. A cross-section of the people has approached the Supreme
Court against the penal provision. They are not just seeking protection
 as sexual minorities, but recognition of characteristics inherent in all
human beings.

According to a ​Deccan Herald ​report, at least 750 cases were registered

and 600 people were arrested under Section 377 in 2014, after the SC
struck down the 2009 Delhi HC verdict, which decriminalised
homosexuality.

But gay activists have often alleged that the law gives an
opportunity to people to use and abuse the criminal justice
system.

They argue that the right to sexuality, sexual autonomy and freedom to
choose a sexual partner form the cornerstone of human dignity.

Section 377 has a “chilling effect” on the right of equality, liberty, life,
dignity and non-discrimination on the ground of sex​.

Section 377 and child abuse​ :​

Child rights activists had criticised the Delhi HC verdict of

de-criminalising homosexuality on the ground that Section 377 was
needed to tackle cases of child abuse. However, the enactment of the
Protection of Children from Sexual Offences (POCSO) Act 2012
removed the need to use Section 377 as POCSO is more child-friendly
and much more stringent.

Implications for heterosexuals :

Section 377 also included consensual sexual acts of adults such as oral
and anal sex in private which were treated as unnatural and punishable.

The petitioners :

The apex court heard the writ petitions filed by dancer Navtej Jauhar,
journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and
Keshav Suri and business executive Ayesha Kapur and 20 former and
current students of the IITs.

They have sought decriminalisation of consensual sex between two

consenting adults of the same sex by declaring section 377 of IPC as
illegal and unconstitutional.

Is 'Section 377' legitimate?

Coming from different parts of the country with diverse religion, age,
sex and other backgrounds, the petitioners said that section 377
legitimises the stigma associated with sexual orientation and its
expression something which is essential, fundam
The Supreme Court has scrapped Section 377 of the IPC,
decriminalising the 158-year-old colonial law which criminalises
consensual gay sex.

Supreme court verdict 2018 :

Supreme Court of India with a stroke of a judgment restored

‘inclusiveness’ by decriminalising part of Section 377 that made
consensual sex between consenting homosexuals a crime.

The judgment was appreciated and hailed by the LGBTQ rights

activists and all the sections supporting them. The ‘victory was
achieved after a decade-long legal battle which saw a win, a defeat and
finally a lasting victory

The pertinent question before the court is, what is the ‘order of nature’
meant by Section 377 in its text. Once the Constitution Bench decides
that homosexuality is also an order of nature and upholds the
fundamental right to sexuality, sexual orientation and choice of
same-sex partners, the doors are opened for individuals to approach the
court in future on the larger issues of legalising same-sex marriages,
inheritance, adoption, and reservation in employment.

By delivering this judgment and establishing the rights of LGBTQ

community it can be safely said that the basic spirit of the Constitution,
at least in this respect, was well guarded by the judiciary.

Conclusion :

France, UK, Canada, United States, Australia and Brazil have

decriminalized 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. Also the law commission of India
significantly suggested to repeal the section 377 in the light of
fundamental rights and said that it’s work was only to avoid child
abuse , rather not to criminalize consenting adult individuals. Thus,
consensual sexual activities between two adults of the same sex should
not be regulated by a law as it violates their Fundamental Rights and a
person’s choice of sexual accomplice is no business of the State to
regulate on.
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.