Section 377 of the Indian Penal Code introduced in 1861 during the British rule of India is modeled on the Buggery Act of 1533. It makes sexual activities “against the order of nature” illegal.
To be precise:
377. Unnatural offenses: 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.
The Naz Foundation (India) Trust, a non-governmental organization (NGO) based in New Delhi that works on HIV/AIDS and sexual health, acted as the petitioner in the Delhi High Court that found that Section 377 of the Indian Penal Code was unconstitutional in 2009. Naz’s vision is to create a just, and equitable society by transforming individuals from socially, and economically excluded communities into agents of change.
The chronology
- Portions of the section were first struck down as unconstitutional with respect to gay sex by the Delhi High Court in July 2009.
- But this judgment was overturned by the Supreme Court of India on 11 December 2013 by Suresh Kumar Koushal. The Court held that amending or repealing section 377 should be a matter left to Parliament and not the judiciary.
- A three-member bench of the Supreme Court reviewed curative petitions submitted by the Naz Foundation and others on 6 February 2016 and decided that they would be reviewed by a five-member constitutional bench.
- On 24 August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttaswamy judgment. The Court also called for equality, and condemned discrimination, stating that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBT population are real and founded on constitutional doctrine. This judgment was believed to imply the unconstitutionality of section 377.
- Later in January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment.
- On 6th September 2018, the Court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex”. The judgment was given by a five judges bench comprising the then Chief Justice of India Dipak Misra, Justices R. F. Nariman, D. Y. Chandrachud, A. M. Khanwilkar, and Indu Malhotra.
The law violates Article 14 of the Constitution, which guarantees all people “equality before the law” Article 15, which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty,” Chief Justice A.P. Shah, and Justice S. Muralidhar said.
CNN named Naz as one of those organizations and people “Who mattered most in 2009”, as a result of its important role and leadership in the Section 377 case.
About The Founder and Foundation
The foundation was established in 1994 by Indian human rights, and animal rights activist – Anjali Gopalan. Anjali started out working on issues related to HIV/AIDS and marginalized communities in the United States in the last 1900s. She started Maz after returning to India. In 2012, Time enlisted Gopalan as one of the 100 most influential people in the world. Later in 2007, the Indian Ministry of Women and Child Development honored Anjali Gopalan as one of 10 women who have made outstanding contributions.
Naz today provides a variety of services to gays, lesbians, transgender people, and those impacted by HIV/AIDS. This includes programs for men having sex with men (MSM); home-based medical care, and other support for those with HIV/AIDS; peer education service to train student educators in training fellow students on sexuality, HIV/AIDS, and sexual health; a Care Home for orphaned children with HIV/AIDS; an outpatient health clinic in New Delhi; training, education, and community involvement activities on sexual health, sex and sexuality and related topics; and the GOAL program supporting underprivileged girls in India. It is basically a sports-based HIV prevention initiative. Through Goal, young girls from economically disadvantaged backgrounds are educated about critical life skills such as sexual and reproductive health, gender equality, and financial literacy so as to enable them to make healthy and informed choices.
The Milan Project for Men Having Sex with Men (MSM) & Transgender (TG) won the MTV Staying Alive Foundation Award in 2006, and 2007. This program supports marginalized males and provides them with the necessary counseling, training programs, and interventions.
A home-Based Care program was embarked by Naz in 2001 to support People Living with HIV/AIDS (PLWHA) with necessary healthcare and legal assistance to have the capacity to address the needs of HIV infection. It assists them to find employment by administering small loans and other business opportunities.
The Peer Education Program funded by the Levi Strauss Foundation with the objective of imparting knowledge, attitudes, values, and skills of the students has been conducting the training and of those being trained. These students will, later on, educate and pass on knowledge to many more of their peers.
A Care Home was set up in 2000 to take care of HIV+ orphans who are struggling to live and catering to their welfare, health, education, and a safe and stigma-free environment. The Home expanded in 2010 to accommodate more HIV+ orphans and serve more needs of the children.
To help Naz continue its amazing work, you can wire transfer, send in cheques, or even donate in kind. Click on this link to go ahead.