The Supreme Court of India on September 6, 2018 in a historic judgement decriminalised homosexuality in India. A five-judge constitution bench led by Chief Justice Dipak Misra and comprising Justices AM Khanwilkar, DY Chandrachud, RF Nariman and Indu Malhotra gave four separate but concurring judgments on the matter.
The bench partially struck down the colonial era provisions of Section 377 of the Indian Penal Code (IPC) and restored the landmark Delhi High Court judgement that had decriminalised homosexuality way back in 2009. The bench diluted the controversial section to exclude all kinds of adult consensual sexual behaviour. However, it was not done away with altogether and will continue to be a part of the IPC to deal with unnatural sexual offences against minors and animals such as sodomy and bestiality.
In the backdrop of this landmark decision, we need to understand what is Section 377 of IPC.
Chapter XVI, Section 377 of the Indian Penal Code (IPC) 1860 was introduced during the British rule of India. It criminalises sexual activities "against the order of nature." 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 term which may extend to ten years, and shall also be liable to fine.
The ambit of Section 377 extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.
The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication Less than Gay: A Citizen's Report, spelled out the problems with 377 and asked for its repeal. As the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust. The activist group filed a public interest litigation (PIL) in the Delhi High Court in 2001 seeking legalisation of homosexual intercourse between consenting adults.
Delhi High Court's historical judgment
In a historic judgement delivered on July 2, 2009, Delhi High Court overturned the 150-year-old section there by legalising consensual homosexual activities between adults. While striking down the section the Court stated that the essence of the section goes against the fundamental rights of citizens in the Constitution.
In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14, 15 and 21 of the Indian Constitution. However, the court clarified that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”
Further it was argued that the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.
However, on 11 December 2013 this judgment of the Delhi High Court was struck down by the Supreme Court in Suresh Kumar Koushal v. Naz Foundation case and, consequently, Section 377 was reinstated with full force.
The Supreme Court was further very specific that this was not the end of the debate and it asked parliament to take a decision on whether Section 377 should be repealed or not.
Besides, Naz Foundation also filed a review petition against the Supreme Court order on Section 377.
While responding to the litigation, the Supreme Court on 28 January 2014 dismissed the review petition. The petitions were dismissed on the ground that Section 377 is Constitutional and applies to sexual acts irrespective of age or consent of the parties.
On 15 April 2015, the Supreme Court in National Legal Services Authority v. Union of India case recognized the right to identity of transgender persons. The Supreme Court also specifically noted that Sec 377 is used to harass and physically abuse transgender persons.
Following the NALSA verdict, Tiruchi Siva, a member of parliament introduced a private member’s Bill titled Rights of Transgender Persons Bill, 2014 in the Parliament. The bill was passed by the Rajya Sabha and is pending before the Lok sabha.
Both the NALSA decision as well as the Rights of Transgender Persons Bill, 2014 have shown the determination of both the Supreme Court and parliament to protect the rights of all citizens including transgender persons. Another state institution, the Law Commission of India as early as 2000, has in its 172 Report recommended that Section 377 be deleted.
Against the repealing of Section 377
• Apostolic Churches Alliance opposing the petitioners argued that homosexuality was an abomination in the Bible.
• It is contended that decriminalising homosexuality would make the Prevention of Immoral Trafficking Act, 1956 redundant.
• If the section is allowed then sexual transmitted diseases like AIDS would further spread and harm the people.
• It would lead to a big health hazard and degrade moral values of society.
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