Section 377 read down: When lovers of liberty rose to the occasion

It took a woman Judge, Indu Malhotra to get the Supreme Court to ‘man-up’ and apologise for allowing Section 377 to stay on the statute books. An apology was long overdue. The Court’s previous ruling in Koushal v Naz (2013) had upheld the constitutionality of the provision. That Judgment was an abomination – both for its effect on the lives of citizens and its (spectacular lack of) legal reasoning. It turned the clock back on more than four years of equal citizenship that had been confirmed by the Delhi High Court. More significantly, it seemed to be the end of the road for almost three decades of progress made by the LGBT movement in India. Five years later, 6.9.2018 would go down as the high water mark, of one modern India’s most well-documented struggles.

Historical Origins

Section 377 is based on an archaic conception of sexual relations. It was introduced as an anti-sodomy law in India by the British crown through Section 377 of the Indian Penal Code. With time the original Sexual Offences Act of 1967 decriminalised the acts of homosexuality and sodomy between two consenting adults in England but Section 377 persisted. The provision reads:

377. Unnatural offences: 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.
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