In March 2013, the Supreme Court upheld the constitutionality of Section 377 of the Indian Penal Code, 1860 (IPC) which criminalizes homosexuality. Subsequently, a curative petition has been filed by various parties associated with the LGBT community under Article 142 of the Indian Constitution. A five-Judge bench will decide if homosexuality should be decriminalized as laid down by the Delhi High Court in 2009.
Section 377 of the Indian Penal Code prohibits “unnatural offences” and defines it as “carnal intercourse against the order of nature”. However, the Act does not define what the “order of nature” is. This provision is a reflection of Victorian morality that has been carried over into the 21st century. In 123 countries, it was never penalized or has been decriminalized while 57 states still criminalize this practice with a sentence of up to 14 years.
Naz Foundation (India) Trust challenged the constitutionality of Article 377 under Article 14, 15, 19 and 21 before the Delhi High Court. The Foundation contended that Section 377 reflects the antiquated notion that the purpose of sex is procreation which has no place in a modern society. It has become a weapon of abuse in the hands of the police and has impeded efforts in prevention of HIV/AIDS. The Foundation cited an instance in 2001 in Lucknow where HIV prevention workers who were distributing condoms to homosexual men were arrested on the allegation of conspiring to commit an offence of sex between two men. It has also been misused in cases of consensual sexual acts which are not peno-vaginal.
The Delhi High Court ruled in 2009 that Section 377 cannot be used to punish sex between two consenting adults as this would amount to a violation of the right to privacy and personal liberty that every person enjoys under Article 21 of the Constitution. The Court said that classifying and targeting homosexuals as a class violates Article 14 of the Constitution. Section 337 was also held to be in violation of human dignity which is forms the core of the Indian Constitution.
The Delhi High Court judgement was challenged in the Supreme Court by organisations and individuals who wished to protect the moral, cultural and religious values of Indian society. They argued that the right to privacy does not include the right to commit any offence. They submitted that decriminalizing homosexuality would be detrimental to the institution of marriage and it would cause young people to become tempted towards homosexual activities.
The Supreme Court reversed the Delhi High Court verdict in 2013 and held that the decision of decriminalising homosexuality can only be done by the Parliament and not the Court. It also held that Section 377 criminalises certain acts and not any particular class of people. It also alluded to the miniscule number of people who practice homosexuality and the fact that only a fraction amongst them had been prosecuted under Section 377.
It is against this judgment of the Supreme Court that several curative petitions have been filed.
The Supreme Court recognised that the rationale of the Supreme Court judgment is not sound in light of the judgments on privacy and the Nalsa Case. The latter recognized sexual orientation and gender identity as integral to a person's dignity. Accordingly, the Supreme Court referred the case to a larger bench owing to the constitutional issues involved.
DISCLOSURE: Jayna Kothari of the Centre for Law and Policy Research has filed a supporting curative petition on behalf of transgender rights activist Akkai Padmashali in this case.
Whether the rationale of the Supreme Court judgment is constitutionality sound in its understanding of fundamental rights?