Will the Supreme Court find Section 377 to be unconstitutional?
Will the Supreme Court find Section 377 to be unconstitutional?(Photo: Erum Gour/The Quint)
  • 1. The Background
  • 2. Getting Around the 2013 Koushal Judgment
  • 3. Why Section 377 is Unconstitutional
  • 4. What Were the SC's Options?
Section 377 and How the Supreme Court Made History

History has been made. It is no longer a criminal offense to be gay in India.

On Thursday, 6 September, the Supreme Court of India delivered a landmark judgment, decriminalising a 157-year-old British-era law that criminalised even consensual homosexual relations.

Four days of hearings on the matter were held from 10-17 July 2018. The Constitution Bench, comprising Chief Justice of India Dipak Misra, as well as Justices Rohinton Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra delivered a unanimous judgment.

“First step towards vanquishing enemies of prejudice and injustice has to be taken”, read the judgment. “We must get rid of prejudice and discrimination. Concept of Constitutional morality creates responsibility of State to protect. Fidelity to constitutional morality must not be confused with popular sentiment.”

But what is the background to this case? What were the arguments raised against Section 377?

  • 1. The Background

    Section 377 of the IPC criminalises “carnal intercourse against the order of nature with any man, woman or animal”. In addition to bestiality, this basically covers any sexual act between people of any gender that isn’t heterosexual penile-vaginal sex, regardless of consent. Under this provision, therefore, even consensual same sex relations are criminal offences.

    While Section 377, which has existed in its current form ever since the IPC came into force in 1860, also covers oral and anal sex among heterosexual couples; it has mostly come to be used against homosexuals and transsexuals, often as a targeted method of harassment.

    The present case before the Supreme Court is the result of a long-running movement against the discriminatory legal provision.

    The Delhi High Court: Victory for LGBTQ+ Rights

    • In 2001, Naz Foundation, an NGO which works on HIV/AIDS and sexual health issues, challenged the constitutionality of Section 377 before the Delhi High Court. A number of organisations fighting for LGBTQ+ rights, such as Voices Against 377, were also impleaded in the case.
    • After an initial struggle to get the case heard, the Delhi High Court delivered a landmark judgment in 2009, that Section 377 had to be read down to exclude sex acts between consenting adults, regardless of sexual orientation.
    • The Delhi High Court held that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to fall foul of the right to equal treatment (Article 14) and the prohibition of discrimination (Article 15).

    The Supreme Court’s Koushal Judgment: A Step Back

    • An appeal was filed against this decision in the Supreme Court by several organisations (religious, political and social) and individuals (including one Suresh Koushal), who claimed that the right to privacy did not include the right to commit an offence, and that decriminalising homosexuality would affect the institution of marriage.
    • In a judgment that surprised many, the Supreme Court in 2013 overturned the decision of the Delhi High Court, holding that Section 377 was not unconstitutional. The judges held that if homosexual acts were to be decriminalised, only Parliament could do this, not the courts.

    Back to the Supreme Court: Chance for Redemption

    • Several curative petitions were filed against this Supreme Court judgment, but had not been listed for several years. Meanwhile, fresh writ petitions were also filed against Section 377 and the judgment. These have been clubbed together by the Supreme Court, along with intervention applications by Naz Foundation, Voices Against 377 and an association of mental health professionals.
    • The lead petition on the Supreme Court documents is the petition filed by Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra. Other petitioners include hotelier Keshav Suri, activist Harish Iyer, and a group of IIT alumni.

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