Context: The Supreme Court is presently hearing a number of petitions to strike down Indian Penal Code (IPC) Section 377 What is section 377?
  • Section 377 states “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 term ‘Carnal intercourse against the order of nature’ is interpreted as any sexual activity that does not form part of the larger goal of procreation(reproduction)
  • Though the law does not explicitly mention LGBTQ community, the phrase “against the order of nature" has come to be referred for same-gender sexual relations
  • It further makes private consensual sexual acts (other than penal-vaginal intercourse)between heterosexuals unlawful
Plea to strike down Section 377- A timeline of events 1994- First ever challenge to Section 377 by Aids Bhedbhav Virodhi Andolan. The challenge was made after there was a refusal to distribute condoms in Tihar jail on the grounds that it will ‘spread’ homosexuality. 2000- 172nd Law Commission Report recommended deletion of Section 377 2001-2009- Naz Foundation Case
  • In 2001, the Naz Foundation, an NGO working on HIV-AIDS filed a PIL stating that the NGO found it difficult to work with gay men (High risk category for HIV-AIDS) because such sex, even consensually, was a criminal offence under Section 377 of the IPC
  • In 2006, an NGO Voices against 377 joined the case and argued about the criminalisation and the harassment, intimidation of the LGBT community by police
2009- Delhi High Court Verdict
  • The Delhi High Court decriminalised homosexuality on the grounds that Section 377 is a violation of-
  1. Article 14 -equality before the law,
  2. Article 21 -right to life and personal liberty
  3. Article 15-prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
2013- Supreme Court’s Verdict against Delhi High Court Judgement
  • Suresh Kumar Kaushal, an astrologer, appealed against the Delhi High Court judgment before the Supreme Court.
  • The Supreme Court reversed the HC verdict and upheld the constitutional validity of Section 377 on the grounds that:
  1. Section 377 is not unconstitutional – It does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence
  2. It stated the Delhi HC while pronouncing the verdict ignored the fact that LGBT forms only a ‘miniscule’ fraction of India’s population.
  3. Further, in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377
  4. The court also added the responsibility of amending or removing Section 377 lay with the Parliament
2014- Supreme Court Verdict on Transgender
  • The SC directed government to declare transgender as 'third gender' and to be given reservation under OBC quota.
2017- Right to Privacy- a Fundamental Right
  • In the Puttuswamy vs. Union of India case the Supreme Court held right to privacy as a fundamental right
  • The court stated that privacy included the preservation of personal intimacies and that sexual orientation was an essential attribute of privacy.
  • The Court argued that right to privacy and the protection of sexual orientation lay at the core of fundamental rights guaranteed under Article 14, 15 and 21
 2018-
  • The Supreme Court began hearing on petitions filed by 35 individuals arguing that Section 377 is violative of their fundamental rights and thus unconstitutional. The Constitutional Bench comprises of 5 members led by Chief Justice Dipak Mishra
  • The Supreme Court bench has been divided over the scope of examining section 377. Justice Chandrachud had opined that hearing on Section 377 cannot be restricted to holding the law merely constitutional or unconstitutional. However Justice Mishra differed and stated that the court first needs to decide the constitutionality of Section 377
Why it is argued that the Section 377 is unconstitutional? Article 21: Right to Life and Personal Liberty
  • Right to Privacy enshrined under Article 21 upholds that if a person cannot enjoy his privacy then it hampers his right to dignified life.
  • The 2017 Supreme Court verdict on right to privacy highlights that the choice of one’s sexual orientation is an important part of his/her privacy. Thus criminalizing homosexuals for what they do in private life is a clear violation fundamental right
  • Justice Chandrachud has recently observed that right to chose a partner falls under Article 21 as held in the Hadia judgement
Article 14- Right to Equality
  • It violates the provision of equality before law
  • It is has been argued that Section 377 violates Article 14 test. It is not based on the intelligible differentia and is based on ambiguous and subjective grounds such as morality.
Article 15:
  • Article 15 provides for a prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth. Thus, any law discriminating on the ground of a person’s sexual orientation is unconstitutional
Article 19 (1) (a) - Freedom of Expression
  • In 2014, the Supreme Court had held that right to freedom of expression includes the right to express one’s identity through “dress, words, action or behaviour or any other form”
  • The petitioners argue that sexual orientation and sexual expression comes under this concept and thus Section 377 is a violation to Freedom of Expression
Challenges in Decriminalizing Section 377:
  1. Since homosexuality is against the majoritarian view on sexual orientation and is opposed in all religions, decriminalising Section 377 and acknowledging homosexuals might lead to widespread criticisms and protest across the country
  2. Mere decriminalizing Section 377 does not ensure rights of the LGBTQ community. Decriminalization of Section 377 will open new debates on marriage, adoption, inheritance and other such rights
  3. Even if Section 377 is decriminalized it does not ensure a halt in discrimination against the LGBTQ community.
International Developments:
  1. In 2015, Ireland became the first country to legalize same-sex marriage. It had decriminalized homosexuality in 1993
  2. In 2015, US Supreme Court held that same-sex marriages are legal
  3. Germany, France, UK, Canada, United States, Australia and Brazil have de-criminalized homosexuality.
  4. Nepal has legalized homosexuality in 2007. Its constitution further acknowledges the rights of the LGBTQ community
  5. In 2016, a UN report had urged to decriminalize consensual homosexual relations. It states that criminalizing consensual homosexual acts was against international human rights law and violates rights to privacy and non-discrimination. It further added that it supports de-criminalization of homosexual behaviour
  6. In 1992, WHO had removed homosexuality from the list of psychiatric disorders. Recently the Indian Psychiatric Society (IPS) has stated that homosexuality is not a psychiatric disorder
The Supreme Court verdict on the constitutionality of Section 377 is still pending