The criminalisation of homosexuality was first imposed by the British in 1861.
Section 377 of the IPC, which stems from this belief, deals with “unnatural offences” and stated 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.”
In 2009, in a landmark judgment, the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the Constitution.
Following this, religious groups moved the Supreme Court for a direction against the verdict.
The Supreme Court in 2013 overruled the Delhi High Court’s order and reinforced criminalisation of homosexuality stating that Parliament’s job was to scrap laws. This judgment by the apex court was highly criticised by the LGBTQ community in India and was seen as a setback for human rights.
On 6 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the SC. The three-member bench headed by the then Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.
On 24 August 2017 in a landmark judgment (also known as the Puttuswamy judgement), the SC had upheld the Right to Privacy as a fundamental right under the Constitution.
The SC also had called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine.
The Puttuswamy judgement is believed to have implications for section 377 as consensual sexual acts in private can no longer be overseen by law.
In January 2018, the Supreme Court said a larger group of judges would re-consider the previous judgment and examine Section 377’s constitutional validity.
Revisiting their 2013 verdict, the top court added that it will decide on a curative petition by five persons. The Supreme Court had then said: “The section of people who exercise their choice should never remain in a state of fear.”
Justice Dipak Misra had further observed, “Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench.”
There are over 20 countries where homosexuality is not a criminal offence, and same-sex marriage is recognised, including the US, England, Australia, Germany and France.
INDIAN PENAL CODE:
The Indian Penal Code (IPC) is the main criminal code of India.
It is a comprehensive code intended to cover all substantive aspects of criminal law.
The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833 under the Chairmanship of Thomas Babington Macaulay.
It came into force in British India during the early British Raj period in 1862. However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The Code has since been amended several times and is now supplemented by other criminal provisions.
After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code. The Ranbir Penal Code (RPC) applicable in Jammu and Kashmir is also based on this Code.