A Constitutional bench of the Supreme Court will deliver its verdict on Section 377 of the Indian Penal Code (IPC), which criminalises homosexuality, on Thursday. A bench of the apex court, led by Chief Justice of India Dipak Misra, concluded hearing a batch of petitions challenging its validity in July. The bench also comprised Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
In January this year, the apex court said it will revisit its earlier verdict. A three-judge bench, headed by the CJI, said it would refer the matter to a larger bench.
Section 377 deals with “unnatural offences,” and holds “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The criminalisation of homosexuality was first imposed by the British in 1860, which found sexual activities between members of the same sex against the “order of nature.”
Here is a timeline of the case
July 2009: Delhi HC decriminalises homosexuality
In July 2009, the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India. “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21,14,and 15 of the Constitution,” a Bench comprising then Chief Justice A P Shah and Justice S Murlidhar had said. In its 105-page judgment, the bench added, “As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.” It however held upheld criminalisation for non-consensual and non-vaginal sex involving minors.
Article 14 guarantees equality before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.
The HC was hearing PILs filed by NGO Naz Foundation, among others. In court, the government had argued that as homosexuality comprises only 0.3 per cent of India’s population, the rights of more than 99 per cent of the people cannot be compromised.
In respond to this, the bench had noted, “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things Constitutional morality must outweigh the argument of public morality,even if it be the majoritarian view.”
December 2012: Supreme Court sets aside order
In December 2012, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.” A two-judge bench, comprising Justice G S Singhvi and Justice S J Mukhopadhaya observed that the HC had overlooked the fact that a “miniscule fraction of the country’s population constitute LGBT,” and that in over 150 years less than 200 people were prosecuted for committing offence under the section.
The apex court also left it to Parliament to consider deleting the provision.
The Naz foundation’s review petition in 2014 was quashed by the SC.
NCRB decides to collect data on offenses under Section 377
It was only after the SC’s verdict, that the National Crime Records Bureau (NCRB) decided to begin collecting data related to offences under Section 377. Other crimes were later added to the bureau’s repository, including gangrape and murder of victim after rape.
Modi govt’s stance on Section 377
After Prime Minister Narendra Modi-led government was sworn in in 2014, it said it would take a decision regarding Section 377 only after the SC judgment. In a written reply to Lok Sabha, Minister of State (Home) Kiren Rijiju had said, “No. The matter is sub-judiced before the Supreme Court. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the Supreme Court.”
A year later in 2015, the lower house, where the BJP is in majority, voted against introduction of a private member’s Bill to decriminalised homosexuality. The Bill had been proposed by Congress’ Shashi Tharoor.
2016: Five petitioners move SC over Section 377
Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. The petition, filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”
The plea challenging the constitutional validity of Section 377 was the first filed by citizens directly affected by it.
August 2017: SC upholds Right to Privacy
The Supreme Court, in a landmark judgment in August 2017, held Right to Privacy as a fundamental right. It also observed that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”.
The judgment, which implicitly overrules its 2013 verdict, is likely to bear on this review.
July 10, 2018: SC begins hearing on Section 377
Five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, begins hearing petitions challenging Section 377.