FAQ

What is Section 377?

Section 377 of the Indian Penal code makes carnal intercourse, or any non-procreative sexual act between a man and a woman illegal, punishable with up to 10 years in jail and/or a fine. Basically, if you’re gay and having sex, you’re most likely violating Section 377!

How does it affect me as a gay man/woman and why should I care?

Since the LGBTQ can only indulge in sexual acts that are not peno-vaginal, this section directly affects them. As LGBTQ, this section denies you the rights that straight people have (freedom of choice) and forms the basis for several other kinds of discrimination against you.

What is ‘carnal intercourse against the order of nature’ mentioned in Section 377?

Carnal intercourse against the order of nature has been described as any sexual act that is not procreative. This includes acts that both homosexual and heterosexuals indulge in, like oral sex, anal sex, masturbation etc.

Does Section 377 also apply to Heterosexuals?

Yes, anyone indulging in non-procreative sex can be punished under this section. So if your straight friends enjoy a little oral, they’re probably as criminal as you are 😉

What is unnatural sex? Are humans the only species that indulge in homosexual sex?

According to Section 377, any sexual act that is non-procreative is considered unnatural. Several species have been known to display homosexual and bisexual behaviour.

What was the High Court ruling about Section 377 in 2009?

In 2009, the Delhi High Court ruled that Section 377 was unconstitutional, based on violations of sections 14 (equality before law), 15 (protection from discrimination) and 21 (protection of life and liberty) of the Indian constitution. It read down Section 377 and excluded consensual acts of carnal intercourse among adults from its purview.

What was the Supreme court ruling about Section 377 in 2013?

In 2013, the Indian Supreme court reversed Delhi High Court’s judgement and said that Section 377 was rarely used (less than 200 cases in 150 years) and that the LGBTQ community constituted only a ‘minuscule minority.’ It also said that there was lack of ‘sufficient documentary evidence of the abuse of Section 377 against LGBT.’

Why did the Supreme Court call LGBT ‘minuscule’?

According to the Supreme Court, Naz Foundation was able to show only 25 lakh individuals documented as LGBT.

Is all lost? What has the LGBTQ community done after this Supreme Court decision?

The LGBTQ community has submitted a curative petition of the judgement in the Supreme Court. The petition has been admitted and is waiting to be heard by a group of five judges who will decide the case (‘constitutional bench’ in legal parlance). Meanwhile, the community hopes to continue the fight to reach the goal of decriminalization.

What’s the big deal – No one has ever been arrested under Section 377 anyway, right?

Section 377 has been used more often to suppress, dominate and blackmail LGBTQ individuals, than it has been used in court. The existence of this section precludes LGBTQ from being recognized as a ‘class of people’ that are equal in the eyes of law. The section makes it difficult for LGBTQ to demand equal treatment at work, recognition of same-sex relationships etc.

I came out at work after the High Court ruling. Now I’m worried I can be prosecuted. Is that true?

To be prosecuted under Section 377, there needs to be documentary proof of ‘carnal intercourse against the order of nature.’ This involves medical examinations right after the act, and sufficient proof beyond doubt that penetration occurred. Simply being out at work, or declaring your attraction for the same sex, is not ground for prosecution.

My friends say that I should never be seen holding hands with a man now, as the police can arrest me. Is this true?

Holding hands, kissing or being affectionate to someone of the same sex is not ground for prosecution. However, this may help the police identify you as a potential LGBTQ person and trouble you in other ways (like blackmail or unlawful harassment). You can definitely NOT be arrested for this.

What precautions should I take to avoid being prosecuted under Section 377?

Remember that guy you invited over at 2 am last week? Or that orgy you traveled to for two hours a week back? Bad idea! -these make you especially vulnerable to tricksters and blackmailers – be cautious and careful when inviting people home, visiting sketchy parties/places, and sending too much information online.

Under what circumstances can I be prosecuted under Section 377?

To be prosecuted under Section 377, there needs to be documentary proof of ‘carnal intercourse against the order of nature.’ This involves medical examinations right after the act, and sufficient proof beyond doubt that penetration occurred.

I am being arrested under Section 377. What do I do now?

This is a rare circumstance – but please contact us.

I am being blackmailed by the police, that they will out me/arrest me under Section 377. What do I do?

Stay calm – no one can arrest you under Section 377 unless they have adequate medical proof, so in all likelihood, this is just an attempt to scare you. Use your presence of mind, do not show fear, and contact us as soon as you can for more help.

I am being blackmailed by someone who is threatening to expose me under Section 377 to the police. What do I do?

Stay calm – no one can arrest you under Section 377 unless they have adequate medical proof, so in all likelihood, this is just an attempt to scare you. Use your presence of mind, do not show fear, and contact us as soon as you can for more help.

My family says if I refuse to marry someone of their choice of the opposite gender, they can have me arrested under Section 377. Is this true? What do I do?

Your family can definitely NOT get you arrested for saying you’re gay, having a gay partner, or refusing to marry someone of their choice! You are an adult, so  contact counselors at the Humsafar Trust for more help at +91 22 2667 3800.0

I am worried I may have contracted HIV, but am scared of getting tested at a hospital. Can the doctor report me to the police under Section 377 if I tell him I’m gay and I’ve had penetrative sex?

HIV testing is free and confidential at all government hospitals and at some gay-friendly clinics, like at Humsafar Trust, and not a reportable crime. Prosecution requires documentation of penetrative sex, which no doctor or police can prove at a later time. Do not delay getting tested, it is perfectly safe and legal!