Section 377 criminalises sexual acts “against the order of nature” and has undergone many twists and turns ever since the Delhi High Court decriminalised it in 2009. Later, in 2013, the Supreme Court overturned the decision. But, with the apex court deciding to revisit its decision on Monday, there is a renewed hope among the members of the LGBT community.
1) What is Section 377?
Section 377 of IPC – which came into force in 1862 – defines unnatural offences. It says, “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 10 years, and shall also be liable to fine.” Moreover, the law also mentions that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”.
2) What was the High Court ruling on Section 377 in 2009?
Following a PIL by Delhi-based Naz Foundation, an NGO fighting for gay rights, the Delhi HC on July 3, 2009, struck down Section 377 of the IPC, holding that it violated the fundamental rights of life and liberty and the right to equality as guaranteed in the Constitution. “Section 377 of the IPC, in so far as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 (Right to Protection of Life and Personal Liberty), Article 14 (Right to equality before law) and Article 15 (Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth] of the Constitution,” a division bench of Justice A P Shah and Justice S Muralidhar said in a 105-page order.
The HC held that the Section 377 denied dignity to an individual and criminalised their core identity on the basis of their sexuality adding that it also violated Article 14 by targeting homosexuals as a class.
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3) Why did the Supreme Court reverse the High Court verdict?
The Supreme Court reversed the HC verdict in December 2013 and upheld the constitutional validity of Section 377 of IPC, while giving the power to the legislature to formulate a law on homosexuality. The judgment said, “We hold that Section 377 does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the High Court is legally unsustainable.” Justice GS Singhvi and Justice S J Mukhopadhaya, who pronounced the verdict, justified its order by saying, “The High Court overlooked that a minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”
4) How will the Right to Privacy judgment affect Section 377?
In August 2017, the Supreme Court, in a landmark verdict, declared right to privacy a fundamental right, ushering in hope for the gay and LGBT community. The apex court had concluded that privacy included at its core the preservation of personal intimacies and that sexual orientation was an essential attribute of privacy. “Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. 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 SC held. The SC decision will definitely strengthen arguments for decriminalisation of homosexuality.
5) What happens now?
On Monday, a three-judge bench headed by CJI Dipak Misra decided to re-examine the constitutional validity of Section 377 and said the matter would be referred to a larger bench. “A section of people or individuals who exercise their choice should never remain in a state of fear. Choice can’t be allowed to cross boundaries of law but confines of law can’t trample or curtail the inherent right embedded in an individual under Art 21 of Constitution,” the bench observed.
The court also issued a notice to the Centre seeking its response to a writ petition filed by five members of the LGBT community. The petitioners said they live in constant fear of police action because of their sexual preferences.
6) What was the Supreme Court verdict on transgenders?
In the April 2014 verdict, hailed by gender rights activists, the apex court directed the government to declare transgenders a ‘third gender’ along with male and female. It also asked the Centre to include them in the OBC quota. Underlining the need to bring them into the mainstream, the verdict by a bench of Justices KS Radhakrishnan and AK Sikri said transgenders should have all rights under the law, including marriage, adoption, divorce, succession, and inheritance.