Queer Movement and Legislation
Volume III, Issue VI, 2020
The term homosexuality and the laws prohibiting ‘unnatural’ sex were imposed across the world through imperial might. In India also unnatural sex was made a criminal offence by the colonial legislation, the Indian Penal Code, drafted by Lord Macauley in 1860 that criminalize “carnal intecourse against the order of nature” under section 377, punished by imprisonment that could be extended upto ten years. Our Judiciary has ever since the inclusion of this offence has tried to interpret what a “carnal intercourse against the order of nature” is, in a several judgements, in its several attempts to define the meaning and scope. There has however not been any distinction of consensual sex or otherwise, in section 377 of Indian Penal Code (IPC), which has effectively made sex between homosexuals a crime. Recently the Supreme Court in the case of Naz Foundation scrapped section 377 and upholded the decision given by the Delhi High Court, thereby declared that so long as it criminalises sexual acts between consenting adults, whether homosexual or hetrosexual is unconstitutional. This paper examines the issues of LGBTI community, and the constitutional validity of section 377 under the shadow of fundamental rights given under part three of the constitution of India.
Keywords: LGBT, Homosexuality, Carnal Intercourse, Hetro Sexuality