Section 377 of Indian Penal Code (IPC) has captured the imagination of the country right now with Supreme Court hearing a clutch of petitions challenging the constitutionality of this Section. For the general public to understand this section it is necessary to trace the history of this section and understand how it actually came to be.
As the act exist today in chapter XVI of the Indian Penal Code, it states that
“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.”
Buggery Act of 1533
Section 377 was originally drafted by Thomas Macaulay around 1838 but came into effect in 1860 after the Sepoy Mutiny of 1857. This law in British India was based on the Buggery Act of 1533 which was enacted under the reign of King Henry VIII. This law under Henry VIII defined ‘Buggery’ as an unnatural sexual act against the will of God and man. It criminalised anal penetration, bestiality and in broader sense homosexuality.
Offences against the Person Act 1861
The Buggery Act was repealed in 1828 and was replaced by the Offences against the Person Act 1828. This Act increased the definition of unnatural sexual acts and allowed for easier prosecution of rapists, but also homosexuals.
This act is considered to be the inspiration for Section 377 of the Indian Penal Code.
Homosexuality was decriminalised in the United Kingdom by the Sexual Offences Act 1967, it’s interesting to note that while the British have allowed same-sex marriage, the Indian government follows the archaic law written in the 1830s and enacted in 1860.
Delhi High Court verdict of 2009
Section 377 was challenged in both the High Court and Supreme Court. In 2009 Chief Justice Ajit Prakash Shah and Justice S Muralidhar decriminalised gay-sex. This judgement was in force until the Parliament decided to amend Section 377.