Section 377
[10] Section 377 was fully replaced along with the rest of the Indian Penal Code by the Bharatiya Nyaya Sanhita (BNS)[11] on 1st July 2024.
Portions of the section were first struck down as unconstitutional with respect to gay sex by the Delhi High Court in July 2009.
[12][13][14] That judgement was overturned by the Supreme Court of India (SC) on 11 December 2013 in Suresh Kumar Koushal vs. Naz Foundation.
On 6 September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex".
[30] Human Rights Watch also argued that the law had been used to harass HIV/AIDS prevention efforts, as well as sex workers, homosexuals, and other groups at risk of the disease,[31] even though those found guilty of extortion in relation to accusations that relate to Section 377 may face a life sentence under a special provision of Section 389 of the IPC.
[32] The People's Union for Civil Liberties has published two reports on the rights violations faced by sexual minorities[33] and, in particular, transsexuals in India.
[39] Rajnath Singh, a member of the ruling party BJP and the Home Minister, is on record shortly after the law was re-instated in 2013, claiming that his party is "unambiguously" in favour of the law, also claiming that "We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported.”[40] Yogi Adityanath, BJP MP, welcomed the 2013 verdict and will "oppose any move to decriminalise homosexuality.
"[41] The Samajwadi Party made it clear that it will oppose any amendments to the section if it comes in Parliament for discussion, calling homosexuality "unethical and immoral.
"[4] The Congress party-led UPA government also supported the law during the initial Naz Foundation case, stating that gay sex was 'immoral' and that it cannot be decriminalized.
The Americans want to open gay bars, and it'll be a cover for paedophiles and a huge rise in HIV cases.
[46] Former Finance Minister and BJP member Arun Jaitley said that "Supreme Court should not have reversed the Delhi High Court order which de-criminalized consensual sex between gay adults" and "When millions of people the world over are having alternative sexual preferences, it is too late in the day to propound the view that they should be jailed.
I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement", he said.
[50] Senior Congress leader and former Finance Minister P. Chidambaram stated that the 2013 Suresh Kumar Koushal vs. Naz Foundation judgement must be quickly reversed.
[4] He also said that "Section 377, in my view, was rightly struck down or read down by the Delhi High Court judgement by Justice AP Shah.
Aam Aadmi Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law.
[53] Shivanand Tiwari, leader of Janata Dal United, did not support the Supreme Court decision, calling homosexuality practical and constitutional.
"[4] Derek O'Brien of the Trinamool Congress said that he is disappointed at a personal level and this is not expected in the liberal world we live in today.
A 1996 article in Economic and Political Weekly by Vimal Balasubrahmanyan titled 'Gay Rights In India' chronicles this early history.
As the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking the legalisation of homosexual intercourse between consenting adults.
[58] Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.
[64] Eventually, in a historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section,[65] legalising consensual homosexual activities between adults.
[68] After initially opposing the judgement, the Attorney General G. E. Vahanvati decided not to file any appeal against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian Penal Code] criminalises consensual sexual acts of adults in private [before it was struck down by the High Court] was imposed upon Indian society due to the moral views of the British rulers.
This ruling was despite the urging of a group of mental health professionals who filed a collection of written submissions to the Supreme court with commentary on the case grounded in their expert opinion[69] The mental health professionals noted that they frequently see LGBT or queer clients who suffer significant psychological distress—depression, anxiety, and more—due to the threat and social censure posed by IPC 377.
These mental health professionals argued that IPC 377 causes LGBT and queer individuals to feel that they are "criminals," and that this status is a significant part of their psychological distress.
The United Nations human rights chief Navi Pillay[70] voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it “a significant step backwards” for the country.
[72] In July 2014, Minister of State for Home Kiren Rijiju in the BJP led Central government told the Lok Sabha in a written reply that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court.
The judgement mentioned Section 377 as a "discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy."
[18] However, as the curative petition (challenging Section 377) is currently sub-judice, the judges authored that they would leave the constitutional validity to be decided in an appropriate proceeding.
[79][80] In its ruling, the Supreme Court stated that consensual sexual acts between adults cannot be a crime, deeming the prior law "irrational, arbitrary and incomprehensible.
[83] In 2011, Italian film maker Adele Tulli, made 365 Without 377 which followed the landmarking ruling in 2009, and the Indian LGBTQ community in Bombay celebrations.
