Section 377 based on Britain's Buggery Act of 1533: SC
The Supreme Court, which unanimously struck down part of the British-era law that criminalized gay sex, has traced the history of the 158-year-old provision in its judgment back to the reign of King Henry VIII in 1533. Justices Nariman and Chandrachud, in their separate concurring judgments, dealt in detail about the evolution of Section 377 as it exists in the present form. Here's more.
Gay sex legal in India
A five-judge constitution bench comprising Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra said that the Section 377 of the Indian Penal Code (IPC) violated the constitutional right to equality and dignity.
Tracing the history of Section 377 of IPC
Justice Nariman said Section 377 was modeled on Britain's Buggery Act of 1533 which was brought in by the then King Henry VIII which prohibited "the detestable and abominable offense" of buggery (anal intercourse) committed with mankind or beast. The word "buggery" is derived from the old French word 'bougre' and was taken to mean anal intercourse, Justice Chandrachud said in his judgment.
Henry VIII made the offense of buggery punishable by death
"The Buggery Act, 1533, which was enacted by Henry VIII, made the offense of buggery punishable by death and continued to exist for nearly 300 years before it was repealed and replaced by the Offenses against the Person Act, 1828," Justice Chandrachud said. "Buggery, however, remained a capital offense in England until 1861, one year after the enactment of the IPC," he said.
Law against homosexuality in British colonies
Justice Chandrachud said that Section 377 was allowed to operate in Independent India as under Article 372 (1), "all laws in force prior to the commencement of the Constitution shall continue to be in force until altered or repealed." Justice Nariman said 8,921 men were indicted between 1806 and 1900 for "sodomy, gross indecency or other unnatural misdemeanors" in England and Wales.
Section 377 under the rule of East India Comany
Referring to the rule of East India Company in the country, Justice Nariman said the then Parliament had established the Indian Law Commission and in 1833, Thomas Babington Macaulay was appointed as its head. Justice Nariman wrote that Lord Macaulay's draft was different for Section 377 and he had recognized a lesser sentence for the crime of "unnatural lust" if performed with consent.
The enactment of Penal Code Draft
After several reviews of the draft, the Commission concluded that the Draft Penal Code was sufficiently complete, and, with slight modifications, fit to be acted upon, said Justice Nariman. The revised edition of the Penal Code was then forwarded to the Judges of the Supreme Court at Calcutta in 1851, and also to the Judges of the Sudder Court at Calcutta.
Committee of Peacock's draft equivalent of Section 377 for enactment
"A Council was formed with Bethune (the Legislative member of the Legislative Council of India), Chief Justice of the Supreme Court at Calcutta, Justice Buller, Justice Colvile, Sir Barnes Peacock as members to review the Penal Code," Justice Nariman wrote his 96-page judgment. It was the Committee of Peacock which finally sent the draft equivalent of Section 377 for enactment, said Justice Nariman.
Indian Penal Code
After 25 years of revision, IPC entered into force on January 1, 1862. The IPC was the first codified criminal code in the British Empire.