The historic verdict reading down Section 377 would not have been possible but for a steady evolution in the law on the subject after the Supreme Court set aside the Delhi High Court judgment decriminalising same-sex relations between consenting adults in 2013. The two major decisions that contributed to this turnaround were the rulings in the NALSA case and the privacy matter.
The first glimmer of hope appeared in 2014, in the National Legal Services Authority vs Union of India case, wherein a two-judge bench of the Supreme Court recognised transgenders as a third gender.
The bench of Justices K S Radhakrishnan and A K Sikri ruled that “hijras, eunuchs, apart from binary gender, be treated as ‘third gender’ for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by Parliament and State Legislature.”
It upheld the right of transgenders “to decide their self-identified gender” and directed the Centre and state governments “to grant legal recognition of their gender identity such as male, female or as third gender.”
The court recognised what is known as the ‘Yogyakarta principles on the application of international law in relation to issues of sexual orientation and gender identity” and extended it to apply to Indian law. The Yogyakarta principles outline the rights that sexual minorities enjoy as human beings under the protection of international law.
Justice Radhakrishnan said gender identity was one of the most fundamental aspects of life, which refers to a person’s intrinsic sense of being male, female or transgender or transsexual person. He pointed out that a person‘s sex is usually assigned at birth, but a relatively small group of persons may be born with bodies which incorporate both or certain aspects of male and female physiology. This was the first time that the court was recognising the reality, marking a major shift in approach.
Justice Sikri concurred with him and laid down that gender identification is an essential component which is required for enjoying civil rights by the community.
Appearing for a group of IITians in the current batch of petitions, advocate Menaka Guruswamy referred to the NALSA judgement and submitted that after this ruling, transgenders were coming out to participate in the democratic process and running for elected offices, but the rest of the LGBTQ community still had Section 377 standing in the way, and this was impoverishing the political discourse.
The second major decision in the direction of decriminalising same-sex relations was the privacy ruling of August 2017, by a nine-judge Constitution Bench. Justice Chandrachud, who was part of the bench which unanimously upheld privacy as a fundamental right, wrote that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, home and sexual orientation.”
The judgment added that “sexual orientation is an essential attribute of privacy” and that “discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual”. It said “the purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion,” and the rationale in the 2013 case was flawed.
After the privacy ruling, the reversal of the 2013 order was a matter of formality.