Section 377, was enacted in 1856 by the British colonists. It states: “Unnatural offences — Whoever willingly 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.”
Thus criminalizing consensual sexual acts between adults by describing them with the vague phrase “against the order of nature”, made homosexuality a criminal offence.
Naz Foundation, the pioneer of LGBT rights, filed a petition in the Delhi High court in 2001, seeking decriminalizing of homosexual act, demanding 377 to be removed. The court decriminalized homosexuality by scrapping Article 377 in 2009. The judges stated that Article 377 denies the rights of gay person to livelihood, which is implied in the notion of Article 21 of the constitution which guarantees right to protection of life and personal liberty.
However, in 2013, the Supreme Court overturned this judgment thereby criminalizing same sex relationships.
Though in 2017, the Supreme Court upheld the right of privacy as a fundamental right under the establishment, calling for equality. The Court also condemned discrimination, stating that protection of sexual minorities lies at the core of fundamental rights, and the rights of homosexuals are real and founded on constitutional right.
Overturning the criminalizing act in 2K18
The Supreme Court on Thursday scrapped 377, decriminalizing the homosexual act, stating: “Sexual alignment is a natural phenomenon. Any discernment on this basis is intruding of the Constitution. Any individual has sovereignty over his/her body… Many sections continue to suffer exclusions due to stereotypes… We can’t call ourselves a developed society unless they are freed from these shackles. LGBT community is no different they hold same rights as others. Wherewithal of one’s identity is a filament of life, someone’s sexuality cannot be criminalized in a free civilization.”