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Is Homosexuality A Taboo In India

Section 377
Sexual offences are classified into 2 parts:
  1. Natural offences
  2. Unnatural offences

Natural sexual offences are those offences which are committed in order of nature.

It includes Rape:
Unnatural sexual offences are those offences which are against the order of nature .

It includes Sodomy, Bestiality, Homosexuality.

To understand a unnatural offence we must know meaning of against the order of nature.

"Against the order of nature" If an artificial or man made act is done and the events do not occur as normal, then it is said to be against the order of nature but there is no proper definition present.

The court held in Khanu v Emperor (AIR 1925 ) that if conceiving a child is not the purpose of intercourse, then the act is said to be against nature's order.

"Sodomy" the word sodomy generally denotes intercourse per anus by a man with a man or with a woman or with an animal.

Sodomy may be either homosexual or heterosexual.

In case the parties are of same sex, it will be termed as homosexual and if the parties are of opposite sex it will be called as heterosexual.

"Bestiality" it means the sexual intercourse either by man or by a woman carried out in any way with a beast(an animal).

Unnatural offences under Indian penal code 1860:
Section 377- 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.

Essential elements of unnatural offences:
  • The accused must have carnal intercourse with a man, or a woman, or an animal;
  • The act was against the order of nature;
  • The act was done voluntarily by the accused; and
  • There was proof of penetration.

Fazal Rab Choudhary V State of Bihar (1983) , the accused was charged for committing an unnatural offence upon a young boy. In view of the fact that no force was used, the sentence of three years imprisonment was reduced to six months. It was held that in judging the depravity of the action for determining quantum of sentence, all aspects of the matter having a bearing on the question of nature of offence must be considered.

According to 172nd Report of Law Commission of India There is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality and that the Law Commission ' suggestion to repeal section 377, IPC while redefining rape to include sexual offences of non-consensual sex between adults of the same sex and pedophilia in its 172nd Report (2000) was most appropriate.

Brother John Antony V State (1990)
The petitioner was boarding home sub-warden who had the duty of taking care of inmates. The sub-warden was alleged to have committed unnatural acts with the boys, who were inmates. The acts were done in such a way as to create an orifice like things to create manipulated movements by inmates.

Therefore, the court held the sub-warden liable as per section 377 of IPC.

Note: In "unnatural sexual offences" consent is immaterial.

Section 377 clearly makes homosexuality illegal on the ground that it against the order of nature.

Constitutional Validity of section 377
Naz foundation V Government of NCT
Decided on - 02.07.2009
Bench - Justice Ajit Prakash Shah and S Muralidhar
  • Consexsual Sex Acts - discrimination
    The NGO filed a writ petition as a PIL to challenge the constitutional validity of section 377 lPC, in which the court held that section 377, IPC is violative of Article 21,14 and 15 of the constitution, in so far it criminalises Consexsual sexual acts of adults in private.

Suresh Kumar koushal V Naz foundation (AIR 2014)
Decided on - 11.12.2013
Bench - Justice GS Singhvi and Sudhansu Jyoti Mukhopadhyay
(Reversed Delhi case judgement of 2009)

If person is found guilty, The HC not right in declaring section 377 of IPC ultra vires Article 14 and 15 of the constitution.

The Division Bench of the HC while reading down section 377 , IPC , overlooked that minuscule friction of country's population constitute lesbians, gays , bisexsuals or transgenders. In the last more than 150 years , less than 200 persons have been prosecuted for committing offence under section 377, IPC and this cannot be made sound basis for declaring that section 377, IPC , is ultra vires provisions of Articles 14 , 15 and 21 of the constitution.

Navtej Singh Johar V. UOI (2018)
Decided on - 06.09.2018
Bench - Justice RF Nariman , DY Chandrachud and Indu Malhotra

Issue: Criminalising "Consexsual acts of adults in private" falling under section 377, IPC. Whether constitutionally valid ? whether

Constitutional standard in penalising Consexsual sexual conduct between adults of same sex fulfilled by section 377, IPC ?

Held: In this case 2/3 majority was held and court held that at one side that section 377 is violative of Article 19(1)(a) and on other side it cannot be regarded as unconstitutional.

If anyone by which we mean both a man and a woman,engages in any kind of sexual activities with an animal the said aspect of section 377 is constitutional and shall remain a penal offence under section 377 .The court applied the doctrine of severability under Article 13 of constitution and make it partially constitutional.

The court used the maxim 'et demus sua cuiquae est tutissimum refugium' which translates to " a man's house is his castle".

Note: The Supreme Court on Jan.5th 2018, formed a constitution bench to hear the challenge to section 377 in a comprehensive manner, even though the curative petition were pending before the court. This could be due to the observations made in the 9 Judge decision on the Right to Privacy case which hunted at the inherent wrongness of the reasoning and decision in Suresh kaushal.

On September 6, 2018 , the apex court bench announced that Consexsual adult gay sex is not a crime and Article 14 , 21 of Indian constitution contradict the present view of section 377. Except gay sex , section 377 IPC remain in force relating to sex with minors, non- Consexsual sexual acts and bestiality.

Childline India Foundation v. Allan John waters (2011)
Complaint of beating and sexual abuse to children living in shelter home was made by victim childern.They clearly deposed that accused running shelter home for children used to have sex with them and ask for fellatio with them and other boys. Statements of victim was supported by Advocate for welfare of children and member of committee appointed by High court to acquire into allegations.

It was held that acquittal of accused on the ground that statements of victims was not reliable or because they are not corroborated by other inmates of shelter home is not proper. It was also made clear that evidence of victims doesn't require corroboration.

The Law Commission in its 42nd Report had recommended that cases of bestiality should be regarded as pathological manifestations to be ignored by the criminal law.

The Commission, however, felt that "Indian society, by and large, disapproves of homo-sexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private", and observed that "Buggery" may continue as an offence punishable less severely than at present but, where it is committed by an adult on a minor boy or girl, the punishment be higher. So the Commission had recommended that section 377 be revised as follows:-

377. Buggery.-Whoever voluntarily has carnal intercourse against the order of nature with any man or woman shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both, and where such offence is committed by a person over eighteen years of age with a person under that age, the imprisonment may extend to seven years.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."

The Indian Penal Code (Amendment) Bill (clause 160) has adopted the above recommendation of the Law Commission.

Criminalising of unnatural offences law across commonwealth countries:
In 2011, the United Nations Human Rights Council passed its first resolution recognizing LGBT rights, following which the Office of the United Nations High Commissioner for Human Rights issued a report documenting violations of the rights of LGBT people, including hate crimes, criminalization of homosexual activity, and discrimination. Following the issuance of the report, the United Nations urged all countries which had not yet done so to enact laws protecting basic LGBT rights.

There are 64 countries that have laws that criminalise homosexuality and many of them are from Africa.

Two Indonesian provinces also ban Consensual same-sex relations, while a nationwide ban on sex outside marriage effectively makes all gay relations illegal.

Countries or areas that have the death penalty on their statute books for consensual gay sex include Brunei, Iran, Mauritania, Saudi Arabia, Uganda, Yemen and some northern states of Nigeria.

Another 29 nations impose maximum penalties for same-sex sexual relation of between 10 years and life imprisonment.

Lawmakers in Uganda have strengthened laws criminalising homosexuality, including the introduction of the death penalty for so-called aggravated homosexuality. This could involve repeat offenders or having gay sex when HIV-positive .

Gay sex between adults is legal in 129 of the 193 member states of the United Nations. Countries that have most recently decriminalised same-sex relations include Singapore, Barbados, Antigua and Barbuda, and Saint Kitts and Nevis

India views on section 377 and it's effects:
In 1977, Shakuntala Devi released "The World of Homosexuals," which is considered to be the first comprehensive study of homosexuality in India. The statement advocated "full and total acceptance" rather than only "tolerance and compassion." They were recognized under the law as a third sex and voting rights in 1994. The judgement that transgender individuals should be considered as a third category of gender was handed out by the Supreme Court of India in the year 2014.

In 2017, the Supreme Court of the United States granted members of the LGBTQ community the right to declare their sexual orientation without fear of reprisal openly. The right to privacy of a person extends protection to the individual's sexual orientation. The portion of Section 377 of the Criminal Code that criminalized gay acts of consenting intimacy was overturned by the Supreme Court on September 6, 2018.

The Effects of Family Reactions on Children Who Identify as LGBT:
Many LGBTQIA+ children and adolescents feared their parents' response, which prevented them from discussing their emotions. People who identify as LGBTQIA+ can take a significant hit to both their mental and physical well-being if they do not have the support of their families in a society that is restricted by a rigid set of social and cultural norms that dictate the terms and conditions of education, career, and marriage. People who identify as LGBTQIA+ can take a significant hit to both their mental and physical well-being if they do not have the support of their families in a society that is restricted by a rigid set of social and cultural norms that dictate the terms and conditions of education, career, and marriage.

What are the challenges faced by LGBTQIA + Community in India:
  • Homelessness
  • Discrimination
  • Lack of representation
  • Mental health
  • Unheard voice of rural LGBTQ+

Provision In Bharatiya Nyaya Sanhita:
Not a single provision inBNS is similar to Section 377 of IPC, which says: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence".

Not a single provision in BNS is similar to Section 377 of IPC, which says: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits unnatural offence".

Section 100, which provides for the right to private (self) defence, permits a person, who is being subjected to unnatural sex, to inflict injury or cause death of the assailant and that he would not be liable to be punished for the act to save himself from being sodomised. An identical provision now finds mention under Section 38 of the BNS.

  • K. D Gaur
  • S. N Misra
  • Times of India Article -
  • Lucy Middleton
  • Sangh views on LGBTQ+ rights signal a shifting tide
  • Human Dignity Trust, ILGA World

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