[This section taken from:
Venkatesan Chakrapani, Ashok Row Kavi, L Ramki Ramakrishnan, Rajan Gupta, Claire Rappoport, Sai Subhasree Raghavan. HIV Prevention among Men who have Sex with Men (MSM) in India: Review of Current Scenario and Recommendations. Background paper prepared by Solidarity and Action Against The HIV Infection In India (SAATHII) working group on 'HIV prevention and care among Indian GLBT/Sexuality Minority communities', Revised Draft, April 2002.]
Indian culture tolerated same sex eroticism for centuries. But the former British rulers found this repulsive, and declared it a crime in the Indian Penal Code (IPC), which was enacted in 1861. IPC section-377, originally drafted by Lord Maculy in the early 1830s, reads:
"Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with either any man, women or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.
Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section" (ABVA, 1991, Lawyers collective, 2000).
The exact scope of this vague definition - "Carnal intercourse against the order of nature" -has generally been interpreted to include acts of anal sex as well as oral sex between males. The possibility of this definition being extended into heterosexual acts of anal or oral sex also exists but has not been tested. Consent of the other party is completely irrelevant for conviction but it may be a relevant consideration while fixing the quantum of punishment. It must be pointed out that homosexuality per se is not an offence, and an "act" of unnatural intercourse has to be proved. Though the law makes only anal (and possibly oral) intercourse between two males a crime, in practice and in effect it criminalizes homosexuality.
The legal status of homosexuality in the Indian Armed Forces follows the model set by section 377. Section 46 of Chapter VI Offences, of the Army Act, 1950 states: "Any person subject to this act who is guilty of any of the following offences, that is to say - a) is guilty of any disgraceful conduct of a crude, indecent or unnatural kind - shall on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to seven years or such less punishment as is in this Act mentioned." Similar provisions exist in the Air Force Act, 1950 (ABVA, 1991).
Sec.377, which criminalizes homosexual behavior, is today responsible for the denial of various fundamental rights like life and liberty, health, privacy, speech, movement, etc., to the sexual minorities. The denial of these fundamental rights to sexual minorities lead to their enhanced vulnerability to HIV/AIDS by making them highly invisible and unreachable for HIV prevention education and for providing sexual health related services. It has also resulted in low self-esteem (which indirectly decreases condom use and increases risky sexual behavior), discrimination in employment, vilification, threats of physical violence, extortion of money from police, etc.
It is now an accepted postulate that the only way of protecting vulnerable populations from HIV/AIDS is by protection and promoting their rights, so that they are in an empowered position to protect themselves. However, due to S.377 IPC, effective interventions are rendered impossible because dissemination of information on anal and oral sex, distribution of condoms, etc. could be construed as abetment of a criminal act.
Many countries including the United Kingdom have decriminalized adult consensual homosexual acts. In India, however the same old British law is being followed blindly with out any inclination to reexamine it. Recently, the Law commission of India (LCI) has examined this issue while reviewing 'rape laws' and recommended changes to the existing laws. The LCI 172nd report has included in its recommendation the repeal of section 377 and has expanded the term 'rape' i.e., penetration of the vagina, anus or mouth with the penis, to any other part of the body. This report is a mere beginning and has not comprehensively dealt with this issue. Many human rights groups, GLBT groups, Child rights groups, and Women's groups are debating upon the LCI deliberations. They are trying to find out inadequacies in the LCI recommendations and to propose necessary changes.
Elimination of sodomy laws and legalization of marriage among gay men and lesbians are considered as one of the environmental structural interventions in HIV prevention (Kim M Blankenship et al, 2000). Hence it is high time that all discriminatory legislations on homosexual behavior be repealed in India in line with many European countries.