377 battle at journey’s end

A quarter century of struggle by the LGBTQI community to exercise their right of free choice ended in the Supreme Court today. This is the story of the long legal battle, and its many ups and downs.

Written by Pritam Pal Singh | Updated: September 6, 2018 2:22:55 pm
section 377 verdict by supreme court today Supreme Court verdict on Section 377: The Bench had reserved its verdict on July 17 after hearing all stakeholders, including gay rights activists.

A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India Dipak Misra Thursday pronounced its verdict on a batch of petitions, decriminalising part of Section 377 of the Indian Penal Code, 1861 that deals with consensual sex between adults. The archaic, colonial-era law criminalised “carnal inter­course against the order of nature” — in effect, punishing gay sex at a time when large parts of the world are championing the essential human rights of LGBTQI communities to exercise their free choice, and to live happy, equal lives without discrimination or hate. The Bench had reserved its verdict on July 17 after hearing all stakeholders, including gay rights activists, for four days.

Follow LIVE UPDATES on the Supreme Court verdict on Section 377

Early battles

One of the first legal challenges to Section 377 came in 1994, when the NGO AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition for its repeal after Kiran Bedi, then the superintendent of Tihar Jail, refused to allow health workers to distribute condoms to male inmates. The repression of same-sex love was spotlighted by the strident rightwing opposition to Deepa Mehta’s Fire, which showed two women abandoned by their husbands finding love and solace in each other, in 1998.

While ABVA failed to follow through with its petition, leading to it being dismissed in 2001, Naz Foundation filed the first major case against Section 377 in December 2001 (Naz Foundation vs Govt of NCT of Delhi & Ors). A two-judge Delhi High Court Bench of Chief Justice B C Patel and Justice Badar Durrez Ahmed dismissed the case in 2004, terming it as a mere academic challenge to the constitutionality of a legislative provision. A review petition too, was dismissed.

Read: What is Section 377 of the IPC?

Victory and defeat

As the LGBTQI movement gained steam across India and several organisations like Voices Against 377 and a spectrum of activists joined the battle, the Supreme Court ordered Delhi High Court to hear the case again. In a landmark decision on July 2, 2009, the High Court decriminalised Section 377, ruling that consenting intercourse between two adults was not illegal. A Division Bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said: “We declare that Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. However, the court ruled, “the provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”. (Naz Foundation vs Govt of NCT of Delhi & Ors, 2009)

The verdict was hailed by the LGBTQI community and sections of civil society such as academics and mental health professionals. However, the verdict was challenged by Suresh Kumar Koushal, an astrologer and journalist, along with 15 others, in the Supreme Court on July 9, 2009.

Express Editorial | As government declines to oppose striking down of Section 377, SC must seize opportunity to right a shameful wrong

On December 11, 2013, a two-judge Supreme Court Bench of Justices G S Singhvi and S J Mukhopadhaya upheld the appeal, recriminalising gay sex. IPC 377 “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable”, the Bench said, and left it to Parliament to “consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”, if it so wished. The verdict was criticised across the world, it led to widespread protests across India, and LGBTQI activists observed a “Global Day of Rage”.

After review petitions filed by Naz Foundation, the Union government, and others in 2014 were quashed, the court in February 2016 referred a curative plea to a five-judge Bench.

Read Section 377 — A timeline of the case

The final push

Two important Supreme Court judgments helped the anti-377 movement to get back on track.

In 2014, in what has came to be known as the NALSA judgment, the SC accorded the transgender community the right to be called the third gender, separate from male and female. Transgender individuals could now seek legal, political and economic rights, and remedy against discrimination. The NALSA order, passed by a Bench of Justices K S Radhakrishnan and A K Sikri (National Legal Services Authority vs Union Of India & Ors, April 15, 2014), led to a reopening of the conversation regarding homosexuality. That same year, a group of LGBTQI activists including the celebrated dancer Navtej Singh Johar filed petitions against Section 377. In 2016, Johar’s petition was forwarded to a Constitution Bench for hearing.

The second landmark judgment in terms of LGBTQI rights came on August 24, 2017, when a nine-judge Bench of the Supreme Court ruled that the right to privacy was a fundamental right. In their order, Chief Justice of India J S Khehar and Justices R K Agrawal, D Y Chandrachud and S Abdul Nazeer said, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone…” The judgment put Section 377 in direct opposition to the legally protected fundamental right to privacy.

Express Opinion | Beyond Section 377

In 2018, as petitions mounted, Johar’s petition was assigned to a five-judge Constitution Bench. Other petitioners include chef Ritu Dalmia and hotelier Keshav Suri. The petitioners have argued that the presence of Section 377 IPC in the statute books makes it clear that the constitutional guarantees of equality, fraternity, dignity, life and liberty are not extended to them.

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