New Delhi: Millions of people were waiting for Thursday's Supreme Court judgement on the legality of Section 377 of the Indian Penal Code, a law framed over a hundred years ago that criminalises gay sex. Although the thought behind the law may seem strange to many modern-day Indians, here are 10 things we all must know about the history of Section 377:
1. This is a part of India's colonial hangover. Framed by the Victorian rulers in the year 1860, this law meant to be implemented in the Indian colony of the British crown read:
“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." It meant that whether heterosexual or homosexual, no one could go beyond the church-prescribed sexual practices, thus outlawing those who indulged in anal and/or oral intercourse with partners of any sex, whether consensual or forced.
2. It also translated as mere penetration being sufficient grounds for a case of offence being framed on counts of the carnal intercourse described in this section.
3. Indian Penal Code's Section 377 was part of the draft of the Indian Penal Code submitted by the First Law Commission to the Governor General of India in 1837.
4. Thomas Babington Macaulay who chaired the First Law Commission in 1835 famously drew inspiration from the Buggery Act of 1533 that was enacted under the reign of King Henry VIII. The Buggery Act of 1533 criminalised anal penetration, bestiality and also homosexuality.
5. Section 377, the law to punish those going against 'the order of nature' was rushed through in 1860 in light of the Sepoy Mutiny of 1857.
6. In 2001, certain NGOs working in the field of LGBT rights, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 under Articles 14, 15 and 19 of the Constitution.
7. In July 2006, a national AIDS control body submitted an affidavit in support of the petition in the Delhi High Court contending that "Section 377 acted as an impediment to HIV prevention efforts."
8. In 2009, the Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private.
9. Few understood that this was not a challenge to Indian culture and that the Victorian-era law was in fact, a remnant of European prejudices against homosexuality. This landmark judgement of 2009 led to various appeals being made to the Supreme Court, challenging the High Court’s authority to change a law.
10. On 11 December 2013, Supreme Court (in a verdict pronounced by Justice G.S. Singhvi who retired on the same day) overturned the Delhi HC verdict that decriminalised consensual sex among adult homosexual men. But the SC also advised the government that it was free to annul the law through legislation.
Meanwhile, the United Kingdom too reframed its laws regarding the kind of sex described as 'a crime' in Section 377. On 31 January 2017, Britain posthumously 'pardoned' Alan Turing, a computer scientist and many others convicted of having committed ‘unnatural’ offences under the Turing bill that became a law in England and the Wales. Independent India is yet to show if it will shun archaic laws and embrace inclusivity.