Section 377 of the Indian Penal Code

Chapter XVI, Section 377 of the Indian Penal Code dating back to 1860, introduced during the British rule of India, criminalises sexual activities "against the order of nature", arguably including homosexual sexual activities.

The section was decriminalized with respect to sex between consenting adults by the High Court of Delhi on July 2009. That judgement was overturned by the Supreme Court of India on 11 December 2013, with the Court holding that amending or repealing Section 377 should be a matter left to Parliament, not the judiciary.

On 6 February 2016, the final hearing of the curative petition submitted by the Naz Foundation and others came for hearing in the Supreme Court. The three-member bench headed by then the Chief Justice of India T. S. Thakur said that all the 8 curative petitions submitted will be reviewed afresh by a five-member constitutional bench.

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 term which may extend to ten years, and shall also be liable to fine.

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

The ambit of Section 377, extends to any sexual union involving penile insertion. Thus, even consensual sexual acts such as fellatio and anal penetration may be punishable under this law.

In 2008 Additional Solicitor General PP Malhotra said:

Homosexuality is a social vice and the state has the power to contain it. [Decriminalising homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." A view similarly shared by the Home Ministry.

The 11 December 2013 judgement of the Supreme Court, upholding Section 377 was met with support from religious leaders. The Daily News and Analysis called it "the univocal unity of religious leaders in expressing their homophobic attitude. Usually divisive and almost always seen tearing down each other’s religious beliefs, leaders across sections came forward in decrying homosexuality and expressing their solidarity with the judgment."

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