In March 2013, the Supreme Court upheld the constitutionality of Section 377 of the Indian Penal Code, 1860 (IPC) which criminalizes consensual sex between same-sex individuals. Subsequently, six writ petitions have been filed by various parties associated with the LGBT community challenging the Court’s ruling. A five-Judge bench is hearing the challenge to the constitutionality of Section 377.
Section 377 of IPC categorises consensual sexual intercourse between same sex people as an “unnatural offence” which is “against the order of nature”. It prescribes a punishment of 10 years imprisonment. The provision is a Victorian-era law, which has survived into the 21st century. Interestingly, about 123 countries around the World have never penalized or have decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex relations.
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 an antiquated understanding of the purpose of sex, namely as as means of procreation, and has no place in a modern society. Further, it claims that the police have weaponized provision, which has impeded efforts preventing the spread 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 that they were conspiring to commit an offence. It also submits that the provision has been misused to punish consensual sex acts that are not peno-vaginal.
The Delhi High Court ruled in 2009 that Section 377 cannot be used to punish sex between two consenting adults - this violates the right to privacy and personal liberty under Article 21 of the Constitution. The Court said that classifying and targeting homosexuals violates the equal protection guarantee under Article 14 of the Constitution. Section 337 violates human dignity which forms the core of the Indian Constitution.
Several organizations and individuals challenged the Delhi High Court judgment in the Supreme Court. They argued that: the right to privacy does not include the right to commit any offence; decriminalizing homosexuality would be detrimental to the institution of marriage and would lure young people towards homosexual activities.
The Supreme Court reversed the Delhi High Court verdict in 2013 and held that the decision of decriminalizing 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 minuscule number of people who practice homosexuality and the fact that only a fraction amongst them had been prosecuted under Section 377.
Several curative petitions were filed challenging the Supreme Court judgement. While the curatives petitions against the Suresh Koushal judgment were pending, 5 individuals from the LGBTQ communities – noted Bharatnatyam dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and media person Sunil Mehra filed writ a petition for scrapping Section 377 IPC in so far as it criminalised consensual sex between same-sex individuals.
The Supreme Court on January 5, 2018, formed a constitution bench for hearing the challenge to Section 377 in a comprehensive manner. While the curative petition was pending, the Court decided to hear the challenge comprehensively. This could be due to the observations made in the 9 judge decision in Right to Privacy case which hinted at the inherent wrongness of Suresh Koushal case. The curative petitions are heard only on limited grounds of violations of natural justice or manifest error in judgment.
In addition, fresh petitions were filed and will allow the court to hear the challenge comprehensively on violation of fundamental rights. The Supreme Court has tagged five other writ petitions along with the present petition filed by Navtej Singh Johar. The 5 judge bench of Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud, Justice R.F. Nariman and Justice Indu Malhotra will start hearing the matter from July 10th, 2018.
DISCLOSURE: Jayna Kothari of the Centre for Law and Policy Research has filed a supporting writ petition on behalf of transgender rights activist Akkai Padmashali in this case.
1) Was the rationale of the Supreme Court judgment in the Suresh Kaushal case sound in its understanding of morality as social morality?
2) Whether Section 377 violates Article 14 and 15 by allowing discrimination on the basis of "sexual orientation" and "gender identity"?
3) Whether Section 377 violates right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex persons?
4) Whether Section 377 violates the fundamental right to expression under Article 19(1)(a) by criminalizing the gender expression of persons belonging to the LGBTQI+ community?