Section 377, titled “unnatural offences”, was enacted by the British after First War of Independence in 1857. Prior to that, sexual activities, including amongst homosexuals, were not penalised in India.
Section 377 penalises non-procreative sexual acts and any act of sexual perversity, as has been interpreted by different courts. Though it textually applies to all persons, homosexual and heterosexual, it has been targeted at gay men.
The Delhi High Court in Naz Foundation v. Government of Nct of Delhi(2009) held that criminalising sexual activities with consent in private not only impairs the dignity of those persons targeted by the law, but it is also discriminatory and impacts the health of those people. Gay men are seen as criminals by the law because of Section 377, and thus by other members of society.
This judgment lifted the criminal restrictions on gay men. However, it was short-lived as the Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) set aside the Delhi High Court judgment.
The Koushal judgment did not notice that the rape law itself had changed whereby instead of mere restriction on penile-vaginal non-consensual sex, it now includes a range of sexual activities, including digital and object penetration.
Section 377 is now restricted only to gay men and perhaps transgender people. The contradictions in the law are glaring. Consent is considered to be irrelevant. In the case of children, law presumes no consent. Therefore all sexual acts between an adult and a child are penalised.
The latest judgment on privacy by the Supreme Court has observed that Koushal has not appreciated the fundamental right to privacy in its application to Section 377. The Koushal verdict is dead; only its burial remains.
After the Koushal verdict, there have been a large number of cases where gay men are being blackmailed by their acquaintances and the police in connivance with each other. These cases have sharply risen in the last three years.
The worst aspect of Section 377 is at the individual level. It makes gay men feel like lesser human beings because they are seen as criminals by law. That impairs not only their dignity, but forces them to go into the closet.
The British, who enacted the law, got rid of it in the 1960s in England. Many countries have got rid of such laws, either by amendment of legislation or vide decisions of the court. India now remains with countries who India would not like to be associated with otherwise.
