The article explores the historical context and constitutional challenges of Section 377[1] of the Indian Penal Code, which punished consensual same-sex relations, and draws implications from the removal of the section. The introduction gives a general overview of the legal and social status of this section and introduces its known history and presentation in Indian law. It further probes the constitutional validity of the said section in detail, discussing landmark legal battles that ended in the decriminalization of the said section.

On these grounds, the research evaluates critically the impacts of such a crucial legal change on the LGBTQ+ community and the society at large in terms of what has changed in public opinion, rights accorded to the LGBTQ+ people through law, and social acceptance. The paper further charts recommendations for further reforms in the laws and policies that would guide the rights of sexual minorities within India. Through synthesizing historical data, legal arguments, and social outcomes, this research will contribute to the ongoing discourse on the human rights and equality of sexual orientation in India.

Introduction
Under British colonial rule, Section 377 of the Indian Penal Code, 1860 was introduced to outlaw sexual acts that were deemed "unnatural" or contrary to the natural order, deviating from societal norms. This section prohibited and penalized sexual activities that defied the natural order.

The LGBT community, inclusive of Lesbians, Gays, Bisexuals, Transgender queers, and other sexual minorities, faced innumerable criticism towards the abolition of the stigma of section 377 and they have actively campaigned for its repeal. Besides the cases, the community fought through pride marches and public awareness campaigns along with allies against human rights violations under Section 377. Their fruitful efforts in fact proved societal stereotypes wrong and created a space to bring legal changes into effect.

The article will primarily concentrate on the unpacking of struggle for the rights of LGBTQ+ individuals in India and the consequences of Section 377 exclusion from the Bharatiya Nyaya Sanhita and the decisive cases that led to the repeal of this section in order to give a more complete understanding of this section to the readers.

Section 377[2]

Section 377 states that:
"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."

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

Section 377 also made consensual sexual activities among adults illegal. The law prohibited the Homosexuality that is sexual relations between the individuals of the same gender, Non-Vaginal Intercourse including anal sexual activity and mouth to genital contact, and Bestiality that is sexual interactions with animals.

History and Background
The historical context of Section 377 is an intricate and complex web of colonialism, societal ostracism and activism for civil rights.

Ancient India[3]
Ancient India openly acknowledged and celebrated diverse forms of love, including homosexuality. Historians and mythology experts reveal a treasure trove of evidence, from sacred Hindu scriptures to poignant Muslim literature and exquisite ancient architecture, showcasing homosexuality's presence in India's ancient past.

Here are some interesting examples:

• The Kamasutra is attributed to Vatsyayana, which speaks of assorted dimensions of human sexuality. Chapter 9 discusses Auparashtika (oral sex), homosexuality, and transgender intimacy. Chapter Purushayita mentions Svairini, independent women engaging in same-sex relationships. The text recognizes men attracted to the same gender, termed Tritiya-Prakriti (third nature). Kamasutra acknowledges eight types of marriages, including Gandharva Vivah, which sanctions gay and lesbian unions without parental approval.
• In the Valmiki Ramayana, when Hanuman observes Rakshasa women embracing and kissing each other, showcasing same-sex intimacy. Another notable tale is of King Dilip, who died childless. Lord Shiva appeared in the dreams of his two widowed queens, instructing them to conceive a child through mutual union. They gave birth to a child known as Bhagirath, best known for having brought the Ganga River to earth from heaven.
• In the Legend of Mahabharat includes a story of the Courageous Warrior Shikhandi. Shikhandi was born to King Drupad. He raised Shikhandi as a prince so as to avenge the Kurus who were the rulers of Hastinapur. Shikhandi married a woman, but soon she came to know about the reality of Shikhandi leading to rebellious outcomes. A divine intervention saved the day by transforming Shikhandi into a male overnight and since then Shikhandi lived like a hermaphrodite.
• According to the Matsya Purana, during the legendary churning of the Milky Ocean, Lord Vishnu transformed into the enchanting goddess Mohini. This divine disguise allowed the gods to obtain the sacred Amrit, granting them immortality. However, Lord Shiva was captivated by Mohini's beauty, and their encounter resulted in the birth of Lord Ayyappa, a revered deity in Hindu mythology.
• Some famous Muslim texts also show depict the same. Babur, the founder of the Mughal Empire, has written about his crush on a boy named Baburi in the Baburnama. Some Sufi poems (mystical Islamic poetry) contain same-sex themes. Sufi Saint Shah Hussain expressed in his writings that he fell in love with a Hindu boy named Madho Lal.
• The Khajuraho temples feature certain intricate carvings depicting same-sex intimacy, including women embracing and engaging in sensual acts with each other and Men displaying genitalia to each other so as to suggest homoerotic interactions.

Colonial Era

• Section 377 of the Indian Penal Code-drafted by Lord Macaulay and introduced by the British colonizing powers in 1860-inquires into "unnatural offenses."
• Section 377 of the Indian Penal Code, that section of law that declared homosexual acts to be illegal and to describe them in some sense as "unnatural" and against the natural order of things. This law was left over from the British rule, and it promoted Victorian-era moral values on Indian society, and it was also influenced by the Buggery Act of 1533.
• The British aimed to enforce moral standards and social norms.
• Section 377 remained unchallenged during the British Rule as the Indian Nationalists focused on the Independence of the country rather than on the social norms.

Nature of the Section 377

• It is relevant to mention that under Section 377 the offense was cognizable and non-bailable and triable by the first-class magistrate.

Post Independence

• Section 377 persisted unaffected even after India gained Independence in 1947.
• India gained Independence in 1947, but the law remained in force undamaged and unaltered.
• Although it wasn't often enforced, its mere existence posed a significant threat to the community, perpetuating harassment, blackmail, and social discrimination.
• Homosexuality was largely a taboo topic in Indian society, with many unaware of the legal consequences of Section 377.

Legal Challenges
In the late 20th Century, the Provisions of Section 377 had to face various difficulties as the members of the LGBTQ+ communities and the Human Rights Advocates fought against its validity and stated its violations of Article 14, 15, 19, 21.

Section 377 denied the LGBTQ the equality before the law, freedom of expression and subjected them to discrimination among the society and also infringed the right of the person on his or her body.

Constitutional Validity under IPC[5]
The LGBT community in India has fought a lot over the past decades since the independence of the country and up to nowadays, in order to be accepted and considered equal within the society. For many years, the courts dismissed every appeal in favour of those wishing to have the law repealed. Again, in context of maintenance of public order only in the year 2006, the petition was decided by the Delhi High Court. Various cases helped in the decriminalisation of section 377. They are cited as below.

Naz Foundation v. Govt. of NCT of Delhi[6]
The members of LGBTQ+ community, were offered support by the Naz Foundation. Members of the organization alleged that section 377 of Indian Penal Code was in direct relationship with the provisions under Articles 14, 15, 19, 21 and were willing to disobey these articles in constitutional manner.

The court stated, no laws can be used to punish two consenting adults who have a sexual relationship with each other. The court maintained that section 377 of the Indian penal code is in breach of the right of Privacy in the article 21. It was further held that in targeting an individual's class, and labelling them as homosexuals for discrimination is unreasonable, thus violating Article 14 of the Constitution, which promotes Right to Equality for all its citizens.

It was held steeply that section 377 of the Indian- penal code infringes upon the fold of Prevention of Gender Bias outlined in article 15, as it resulted in unmeasurably discrimination of people. It was also said that Section 377 of the IPC is a violation of Article 19 of the Constitution of India i.e. the Freedom of Speech and Expression.

Delhi High Court Bench, as a result of the 1860Previously described and explained Reasons, annuls Section 377 of the Indian Penal Code.

Suresh Kumar Koushal & Anr. Vs. Naz Foundation & Ors.[7]
The judgment concerning the Naz Foundation Case back was escalated to the Supreme Court which later overturned the Delhi High Court ruling in favour of Naz Foundation in 2013 stating that, the matter pertaining to the issue of decriminalization of same sex should only be addressed by the Parliament, and not the courts. The Court determined that section 377 does target and criminalize a class of people which would have been against Article 14, 15, 19 and 21 of the Indian Constitution. However, it was held that the Right to Privacy cannot be construed in a way which sanctionizes the commission of an offense by an individual.

As the Supreme Court did not decide the section unconstitutional it resulted in the reversal of the Delhi High Court Judgement.

National Legal Services Authority vs Union of India[8]
The court laid emphasis on the psychological sex rather than that biological sex of the person. The court brought very negative remarks on the gender recognition based on the biological aspect and gave importance to psychological sex after considering many countries' laws on this issue. The Court in this case noted that the transgender persons and international treaties concerning them must be recognized, and they should be adopted in case they are compatible with the fundamental rights.

It is noted by the Court and declared that the transgender population is expected to get a legal recognition under the 'third gender' and that the state must work on the same. Along with this, they are also given the freedom to choose their self-identified gender, i.e. in Article 21 of the Constitution. In addition to this, the Court ruled that Article 19 (1) (a) of the Indian Constitution confers the right to privacy, gender disposition, and importantly, many other additional rights were conferred for the benefit of transgender persons under this decision.

Justice K.S. Puttaswamy v. Union of India[9]
A bench consisting of nine judges heard this case. In the present case, Justice D.Y. Chandrachud admitted the error committed by the Supreme Court in the case of Suresh Koushal v Naz Foundation. Accordingly, the Supreme Court held that every person retains the right to sexual orientation as per the Right to privacy under Article 21. This right cannot be denied.

Navtej Singh Johar v. Union of India[10]
The five-judge bench heard the case. The apex court absolved the crime that is any form of sexual intercourse between adults in private irrespective of homosexuality and heterosexuality.

Primary conclusions in respect of the case are:

• In this instance, the court asserted the principle that every act committed by another adult of whatever sexual orientation for whatever purpose, must be recognized as consensual or non-consensual and also posits the position that where such acts are consensual, sodomy etc. need not apply to those acts. The court also focused on the NALSA ruling and also the Puttaswamy ruling and accepted that the right to an individual sexual orientation is a right that falls under the right to privacy.
   
• The Supreme Court endorsed what the High Court of Delhi decided in Naz Foundation where it was also said that in the meaning of the word 'sex' in Article 15 of the Indian Constitution, these are not only biological, but also social sex.
   
• The court, in accordance with its ruling, stated that sexual orientation is not something that can be changed at will, but is instead ingrained within an individual naturally. This relates to a positive decision which the LGBTQ people will have whether or not to engage in sexual orientation with people for sex which is the same as that of theirs and will thus be seen as a declaration of their self-rule and the right to determine who they want to have sexual intimacy with.

Therefore, the Supreme Court in its 5-Judge Bench ruling found Section 377 to be unconstitutional if the act is consensual.

Effects of Removal of section 377 from Bharatiya Nyaya Sanhita, 2024
The abrogation of the provisions of section 377 from Bharatiya Nyaya Sanhita, 2024 marks another significant shift in the context of Indian law towards LGBTQ+ acts and consensual sexual activities. The BNS is a completely new code which has been devised to supersede the Indian Penal Code. In the new code section 377 has been entirely expunged since the parliament has unambiguously legalized the practice of same sex relationships as directed by the courts.

Adverse effects:
The removal of section 377 adversely affected various segments of the society.

A list of few of them are as follows:

• Loss of Safeguards for Male Victims[11]
  Removal of Section 377 puts male victims at the risk of sexual assault, as the existing definition of rape under the BNS is gendered and only applies to acts committed by a man against a woman. Absence of section 377 would leave the male victims vulnerable to sexual assault.
  
  Section 377 of the IPC, under which "carnal intercourse against the order of nature with any man, woman, or animal" finds a place, covers all non-minor males as rape victims. The particular section has been scrapped out from the proposed BNS. Much has changed with the inauguration of "Bhartiya Nyaya Sanhita" in 2023. The proposed Bharatiya Nyaya Sanhita, 2023 contains no protection for male survivors of sexual assault.
  
  In the absence of specific provisions addressing their experiences, male victims of sexual assault can face difficulties in the pursuit of justice and there is a likelihood of some individuals or groups misusing such a removal and taking advantage of certain individuals, especially men, in the name of a consensual relationship. Also, there may be circumstances under which such threat, extortion or intimidation exists, but the law will not be able to intervene clearly to prevent them.
  
  Limited legal options would exist for the male victims of sexual assault since specific provisions do not exist in the BNS for covering their experiences.
   
• Vulnerability of Animals
  Section 377 may also make animals a vulnerable prey to sexual abuses because the section labelled unnatural acts with animals as a crime. Section 377 also in a historical context prohibited acts of bestiality (sexual acts involving animals). There can be seen some legal grey areas concerning bestiality after such provision is removed, since the law in question did not only criminalize consensual homosexual acts but also bestiality.
  
  While bestiality is illegal in most of the other animal welfare statutes in India, the constitutional alteration of Section 377 can diminish the attention or even the implementation of actions against cruelty or exploitation of animals. It may be observed that people's attitude towards animals may degenerate as people stop caring about sexual containment and therefore resentment and violence towards animals including bestiality will go unchallenged.

The Article 377 being repealed without any legal substitute pertaining to bestiality can have a negative consequence on the country's standing in regard to animal rights. International animal welfare agencies, rather than encouraging the government regarding its bestiality policies, may see such proposals as regressions in animal protection due to the absence of specific legal mechanisms.

Weakening of protection for women
The abolition of Section 377 from the Bhartiya Nyaya Sanhita is primarily targeted at legalizing consensual same-sex relationships. However, it also has relevant aspects to women, mainly on the subject of performing unnatural sexual acts (generally understood to mean non-consensual and coercive practices such as forced anal and oral penetration).

Before the removal of Section 377, the law could be used in cases when women were subject to anal or oral intercourse even within a marriage or relationship since marital rape is not yet considered a crime in India. There arises the possibility that with the scrapping off of Section 377, some sections of sexual coercion or unnatural acts in a marriage will remain unpunished.

In socio-cultural contexts where the law does not recognize marital rape as an offence, a husband who forcefully engages his wife in anal of oral sexual intercourse, as opposed to heterosexual intercourse, may find himself liable for an offence under Section 377 of the penal code. In the absence of this provision, it is likely that women would become incapable of legally contesting such acts of abuse, as these would not be classed as illegal activities within the society.

Prior to the repeal of the provisions of Section 377, these behaviours could have been labelled 'unnatural offences', providing a means for women suffering abuse to take legal action. Yet, the striking down of this provision may keep women at risk of sexual coercion in the home-front unless another such legal provision is made.

Beneficial Outcome:
The removal of section 377 had brought some positive and beneficial outcomes for the society.

A list of few of them is as follows:

• Protection of fundamental rights
  If there is one thing about Section 377 that compelled its repeal, it is the issue of equality before the law. By definition, intolerance of any consensual same sex relations draws an unfounded line of distinction between heterosexual and queer individuals, which cannot be justified. The legislature envisaged that all citizens, regardless of sexual orientation, would be equal before the law.
  
  The famous 2017 Supreme Court verdict on the Puttaswamy case has recognized the right to privacy as a right protected by Article 21 of the Constitution, with all its ramifications, including the non-interference of the state in the private domain. This statement was the basis upon which Section 377 was decriminalised since sexual acts between adults was nobody's business as it was a health issue. The aim of the legislature was to uphold the right to privacy and freedom of individuals to engage in intimate relationships, how ever complicated or simple they are.
   
• Increased Visibility and Acceptance of LGBTQ+ Community
  The laws in India, which prohibit same sex relationships, have been scrapped and removed. As a result, many active members of the LGBTQ+ Community can now be themselves without having to look over their shoulders out of fear of prosecution. This shift provides a level of encouragement for LGBTQ+ persons as they are now capable of carrying out their day-to-day activities without having to hide their true selves in dignity.
  
  The elimination of Section 377 has already spurred more visibility and involvement of claims to LGBTQ+ rights in multiple forms of the media. Such visibility helps in introducing conversation around gender and sexuality that Indian society has always suppressed or avoided. A process that, eventually, can bring more information and understanding about sexual and gender minorities and promote intolerance and hatred towards them. The more legally accepted the LGBTQ+ community becomes, the more constructively active they will be in the media and/or in the works of art.
   
• India's Global Image
  The scrapping of Section 377 improves the global outlook of India as a nation in the process of embracing diversity and protection of its people. This development puts India in a league of countries that have ruled out the ban on same sex practices and has cleared its stance on respecting the provisions of the human rights norms in the world.
  
  As one of the largest democracies, India is culturally and politically powerful and especially in the global south. The removal of Section 377 could provide some countries in south Asia and elsewhere that still regard homosexuality as a crime with an example to follow. It could also create such movements within these nations, which would pursue such transformation of legislation, facilitating the global process of liberalization of attitudes towards LGBTQ+.

Is the removal of section 377 a legal loophole for BNS?
The repeal of Indian Penal Code (IPC) Section 377 which criminalises sexual relations 'against the order of nature' from the Bharatiya Nyaya Sanhita (BNS) has incited controversy with repercussions both positive and negative. Among them, one of the positive consequences is that it has promoted the rights of LGBTQ+ community and legalisation of consensual same sex relations does not only enhance these cultures but also brings in social justice where for instance, LGBTQ persons do not need to live in fear of being prosecuted for their behaviour.

Notably, however, these benefits can be said with some reason to be outweighed by disadvantages. The absence of Section 377 leaves a moral justification to unnatural sexual practices especially when such acts are forced, threatening women, animals and other defence less people. Indeed, it may put women and even other persons at serious risk from sexual aggravation where there are no strict laws punishing unnatural sexual coercion or force.

In the end, even if the upliftment of numerous legal barriers and protections for the LGBTQ community is commendable, there are some risks. The issue of repealing Section 377 of the IPC without adequate provisions is that it creates risks in the legal regime which can bear implications for enforcing justice against questions regarding age and consent in the BNS.

Suggestions
The need to change norms that condone discrimination and violence in society against certain groups, as well as attitudes that accept or ignore oppressive practices and encourage relationships of domination, the results of which are patriarchy and systemic oppression.

Legal and policy reforms can also be geared towards producing more inclusive and diverse environments.

A few ways in which this can be achieved include:

1. Enhancing sexual offenses and consent laws
   Statutory provisions be made to plainly prohibit forceful engagement in non-consensual unnatural sexual acts especially, oral or anal penetration. Such would prevent exploitation or coercion of women and persons, without risking criminalizing 'consenting' otherwise adult individuals in sexual relationships. There should be an expansion in the contours in the Indian law relating to rape and sexual assault.
    
2. Bestiality should be made a crime
   Bestiality should be defined clearly and made an offense since it may deteriorate the state of animals in the subsequent abolishment of Section 377. This will help in combating animal cruelty without the fear that some cracks have been left out by the decriminalisation.
    
3. Marital rape laws be introduced
   Marital rape must be made a criminal offense and laws enacted to safeguard spouses against all sexual violence including unnatural sexual practices in unions. This means that no individual will be obliged to engage in sexual relations against him or her will irrespective of being married or not.
    
4. Enhance Legal Protections for Vulnerable Groups
   Legal framework be reinforced for the vulnerable groups or community including women, children and people living with disabilities, but the laws and policies that are in favour of removing Section 377 should not put them at risk of being abused.
    
5. Public Awareness and Education
   Public education on concepts such as consent, sexuality, and rights, including LGBTQ+ rights should be carried out. Initiatives must also include correcting the faulty belief systems attached to the abnormal sexual practices and encourage healthy interactions regardless of the sex orientation of individuals. Counsel the students in schools and with communities on respect, gender and sexuality issues, and consent so as to eradicate stigma and discrimination in every relationship.

If these measures are put in place, the positive effects of decriminalizing same-sex relationships in India can be sustained, while at the same time wrapping up the loopholes in the law which may expose the soft targets to abuse.

Conclusion
The article has offered an exhaustive evaluation of Section 377. It originated with the IPC during the colonial period under which unnatural sex was penalized. However, this provision was contentious over time due to the different perspectives of human rights. The article examined the constitutional position of Section 377, which was the subject of a court action, and its ultimate decriminalization by the Supreme Court in 2018.

As such, although the striking down of Section 377 was an encouraging development in the battle for equality, other changes are still required for the legal framework to be just to everyone.

End Notes:

1. Section 377 of the Indian Penal Code, 1860 - https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf
2. Srija Singh, Anant Gupta, Beyond Decriminalization: The Ripple Effects of Section 377 Repeal on India's Criminal Justice System, 16 February 2024 - https://articles.manupatra.com/article-details/Beyond-Decriminalization-The-Ripple-Effects-of-Section-377-Repeal-on-India-s-Criminal-Justice-System (last visited on November 14, 2024)
3. Deepanshi Mehrotra, The Pre-Colonial History of Homosexuality in India: Why Love Is Not Western (Part I/III), June 29 2021 - https://www.lawctopus.com/academike/history-of-homosexuality-in-india/ (last visited on November 12, 2024)
4. Anindita Deb, Section 377 IPC, August 9 2022 - https://blog.ipleaders.in/section-377-ipc/ (last visited on November 14, 2024)
5. Sneha Mahawar, Unnatural Sexual Offence, January 24 2023 - https://blog.ipleaders.in/unnatural-sexual-offence/ (last visited on November 14, 2024)
6. 160 DLT 277 Naz Foundation v. Govt. of NCT of Delhi
7. AIR 2014 SC 563 Suresh Kumar Koushal & Anr. Vs. Naz Foundation & Ors.
8. AIR 2014 SC 1863 National Legal Services Authority vs Union of India
9. AIR 2018 SC (SUPP) 1841 Justice K.S. Puttaswamy v. Union of India
10. AIR 2018 SC 4321 Navtej Singh Johar v. Union of India
11. Srija Singh, Anant Gupta, Beyond Decriminalization: The Ripple Effects of Section 377 Repeal on India's Criminal Justice System, 16 February 2024 - https://articles.manupatra.com/article-details/Beyond-Decriminalization-The-Ripple-Effects-of-Section-377-Repeal-on-India-s-Criminal-Justice-System (last visited on November 12, 2024)

Written By: Himanshi Sharma, 4th year BA-LLB Student at Mohanlal Sukhadia University College of Law, Udaipur.