Section 377 verdict: Supreme Court legalises homosexuality, partially strikes down Section 377

Sep 6, 2018 17:02 IST
Supreme Court decriminalises Section 377

A Five Judge Constitution Bench of the Supreme Court on September 6, 2018 decriminalised Section 377 of the Indian Penal Code (IPC) by partially striking down some of its provisions.

The bench comprising Chief Justice Dipak Misra; Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra ruled that Section 377, to the extent it criminalises sexual acts between consenting adults, whether homosexual or hetrosexual, is unconstitutional.

However, bestiality will continue as an offence. Any kind of sexual activity with animals shall remain penal offence under Section 377 of the IPC.

The Judgement overrules the Suresh Kaushal Judgement pronounced in 2013 by the apex court. The judgement is based on the interpretation of Article 14 (Right to Equality); Article 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth); Article 19 (Freedom of Speech and Expression); and Article 21 (Right to Life and Right to Privacy) of the Indian Constitution.

Judgements made by Chief Justice and Justices

CJI Dipak Misra

 

Section 377 is arbitrary. LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights.

CJI Misra & Justice Khanwilkar

Discrimination on the basis of sexual orientation is violation of freedom of speech and expression. Bodily autonomy is individualistic. Expression of intimacy is part of right to privacy.

CJI Misra & Justice Khanwilkar

Section 377 to the extent it criminalses sexual acts between consenting adults, whether homosexual or hetrosexual, is unconstitutional.

Justice R F Nariman

Homosexuality cannot be regarded as mental disorder. Homosexuals have right to live with dignity.

Justice Chandrachud

Section 377 inflicts tragedy and anguish; it has to be remedied. Human sexuality cannot be confined to a binary.

Justice Indu Malhotra

History owes an apology to these people persecuted by Section 377 for the social ostracism caused by the section.

What is Section 377?

The section holds that whoever, voluntarily, has carnal intercourse against the order of nature with any man, woman or animal, commits an unnatural offence.

A person found guilty, under Section 377, 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 pay a fine.

Section 377 existed ever since the Indian Penal Code came into existence in 1860.

A cheerful Judgement: Infuses high spirits and joy

Lead petitioners

Following the Judgements of the Delhi High Court and the Supreme Court, several petitions were filed, but were not listed for years. All these petitions were clubbed the Supreme Court along with the petition of the Naz Foundation.

The lead petitions were filed by Bharatnatyam dancer Navtej Singh Johar; chef Ritu Dalmia; business executive Ayesha Kapur; hoteliers Aman Nath and Keshav Suri; journalist Sunil Mehra, activist Harish Iyer and a group of IIT alumni.

The petitioners contend that the continued existence of section 377 severely curtails the protection of equality, dignity, liberty and expression that the Constitution guarantees to all Indian citizens.

July 2018 Judgement of Supreme Court

 

The Supreme Court of India on July 12, 2018 stated that if the criminality of consensual gay sex is done away, the social stigma and discrimination attached to the LGBTQ community would go.

A five-judge bench comprising Chief Justice Dipak Misra and Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra ruled this while hearing petitions challenging the constitutional validity of the 158-year-old penal law.

The bench said that the LGBTQ (lesbian, gay, bisexual, transgender and queer) community faced discrimination and social stigma because of the criminality attached to the consensual same-sex relationship.

The bench said that it will try to see whether section 377 of the IPC can stand the test of fundamental rights enshrined under Articles 14 (right to equality), 19 (freedom of speech and association) and 21 (right to life and liberty) of the Constitution.

However, the court reserved its verdict on whether to decriminalise Section 377 or not.

Delhi high court’s 2009 ruling

In 2001, the Naz Foundation, an NGO working on HIV/AIDS and sexual health issues, challenged the constitutionality of the Section 377 before the Delhi High Court.

In 2009, the Delhi high court had ruled that Section 377 of the Indian Penal Code (IPC) was unconstitutional. The court held that penalising such actions violated the Right to Privacy and personal liberty under Article 21 of the Indian Constitution.

It was also in violation of Article 14- the Right to Equality, Article 15- no discrimination on the basis of gender.

Delhi High Court’s ruling challenged by individuals and religious groups

Following the Judgement, though the government did not appeal the high court decision, a challenge on the grounds of public morality was filed in the Supreme Court by individuals such as Suresh Kumar Koushal and groups of religious bodies such as All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council.

They all claimed that the Right to Privacy did not include the right to commit an offence and decriminalising Section 377 would affect the institution of marriage itself.

Supreme Court’s 2013 ruling  (Suresh Kaushal Judgement)

  • The Supreme Court in 2013 in Suresh Kumar Koushal v Naz Foundation case overturned Delhi High Court's July 2, 2009 verdict that decriminalised consensual sex among adult homosexual men.
  • The court held that homosexuality or unnatural sex between two consenting adults under Section 377 of the Indian Penal Code is illegal and will continue to be an offence.
  • It, however, stated that a competent legislature shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it.

Supreme Court’s ruling on Right to Privacy

A nine-judge bench of the Supreme Court on August 24, 2017 ruled that the Right to Privacy is the Fundamental Right under Article 21 of the Indian Constitution. The bench observed that privacy is intrinsic to freedom of life and personal liberty guaranteed under Article 21 of the Constitution.

A Quick Timeline

2001

Naz Foundation challenged the constitutionality of the Section 377 before the Delhi High Court.

 

2009

Delhi High Court decriminalises homosexuality and ruled that Section 377 is unconstitutional

2009-12

Individuals and religious groups challenged Delhi High Court’s decisions

2013

Supreme Court sets aside Delhi High Court’s ruling and recriminalizes Section 377

2016

Supreme Court agrees to revisit all the petitions

2017

Supreme Court upheld Right to Privacy

January 2018

Supreme Court agrees to reconsider its 2013 ruling and sends it to a larger bench

July 2018

Supreme Court stated that if the criminality of consensual gay sex is done away, the social stigma attached to the LGBTQ community would go.

September 2018

Supreme Court delivered historic judgement; terms Section 377 of the IPC as unconstitutional.

 

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