On September 6, 2018, after decades of relentless legal battle, a Constitution Bench of the Supreme Court struck down Section 377 of the Indian Penal Code, 1860 for being violative of fundamental rights of the LGBTQ+ community. Apart from subjecting them to widespread discrimination, Sec. 377 had become a tool in the hands of law enforcement bodies to harass the LGBTQ+ community through acts of physical abuse, illegal detention, extortion, etc. Even Parliament turned a blind eye to the ignominy and ostracism faced by the LGBTQ+ community. Thus, the verdict of the Supreme Court ushered in a new era for the LGBTQ+ community in India.
History of the legislation
Sec. 377, which criminalises all forms of consensual sexual intercourse other than heterosexual penile-vaginal sex is a colonial-era law that has its origins in the sodomy laws of England, the earliest of which were recorded in the Fleta (1290) and the Britton (1300). In both these texts, the prescribed punishment for sodomy was ‘death by burning’. This barbaric form of punishment was later changed to death by hanging under the Buggery Act of 1533, which was re-enacted by Queen Elizabeth I in 1563, and became the source for similar legislation across British colonies.
Though the law on ‘unnatural offences’ that was modelled on the Buggery Act, 1533 was drafted by Thomas Macaulay around 1838 (Clauses 361 & 362, Draft Penal Code of 1838), it was enacted as a part of the IPC in 1860, under Chapter XVI titled “Of Offences Affecting the Human Body”.
Sec. 377 which was challenged before teh Supreme Court, read as follows:
377. Unnatural offences. 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.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
Until 1955, the punishment was “transportation for life”. In 1955, through Act 26 of 1955, the phrase was substituted with “imprisonment for life”. Transportation for life as a punishment was given by the coloniser to the most serious of crimes. The mindset of the colonisers is seen from the notes of Lord Macaulay who referred to sodomy or buggery as a crime “not to be mentioned by Christians”.
Though the law in the UK underwent significant change with the abolition of the death penalty for buggery in 1861 and subsequent decriminalisation of private homosexual conduct by way of the Sexual Offences Act, 1967, most erstwhile British colonies continue to retain laws criminalising consensual homosexual conduct. As per latest reports, around 74 countries continue to criminalise homosexual conduct.
Challenging sec. 377
The legal battle started in 1994 with a petition filed by AIDS Bhedbhav Virodhi Andolan in the Delhi High Court, following a public controversy over the Tihar Jail authorities’ refusal to provide condoms to the inmates. This group reportedly disbanded, and the Naz Foundation continued their fight by moving the Delhi High Court in 2001. This petition was dismissed in September, 2004 on the ground of locus standi, and the review petition was also rejected. A special leave petition was filed in the Supreme Court, which on February 3, 2006, set aside the Delhi High Court order on the ground that the matter requires consideration and remitted it back to the High Court.
This was perhaps the year when the battle against Sec. 377 started gaining momentum, as there was widespread public support from a number of activists, NGOs, government agencies, public personalities, academics, writers, etc, who condemned the persecution of sexual minorities. The ministry of health and family welfare, through the National Aids Control Organisation filed an affidavit in the Delhi HC stating that the enforcement of Sec. 377 was a hindrance to their HIV prevention efforts, given that homosexual men are more vulnerable to contracting HIV infection. On July 2, 2009, in a historic judgement, the Delhi High Court read down Sec. 377 to exclude consensual sexual intercourse between adults.
Though the government did not challenge this judgement, several SLPs were filed by third parties because of which, on December 11, 2013, a division bench of the Supreme Court set aside the judgement of the Delhi High Court, and held that it was for Parliament to deliberate upon this matter and make necessary amendments.
The review petition filed by Naz Foundation was also dismissed in January 2014. After this disappointing decision, the country witnessed a significant shift in public discourse, with widespread mobilisation in the form of pride marches and LGBTQ+ demonstrations. More importantly, the Supreme Court, through a series of judgements such as NALSA (2014), Justice K.S. Puttaswamy (2017), Shakti Vahini (2018), and Shafin Jahan (2018) developed jurisprudence on the right to personal autonomy and privacy, especially with the court in Puttaswamy stating that sexual orientation is an essential attribute of the right to privacy. In 2016, fresh writ petitions under Article 32 were filed by LGBTQ+ community members, which were referred to a Constitutional Bench in January, 2018, which gave the historic judgement on September 6, 2018.
The fresh petitions were heard by a Constitution Bench of the Supreme Court comprising Chief Justice Dipak Misra and Justices Rohinton Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra. It is pertinent to note that the Union of India did not contest the case and left the interpretation of Sec. 377 to “wisdom of the court”. While Chief Justice Misra wrote an opinion for himself and Justice Khanwilkar, Justices Nariman, Chandrachud and Indu Malhotra wrote separate concurring opinions. In this article, I intend to highlight only the common threads underlying the multiple opinions of the judges.
Chief Justice Misra emphasised on dignity and equality as facets of right to life, and held that the primary objective of having a constitutional democracy is to transform the society progressively and inclusively.
In the earlier decision of the Supreme Court, it was held that Sec. 377 affected only a miniscule proportion of the population, and as such, it was not necessary for the court to intervene. This view was overruled in Puttaswamy, and Chief Justice Misra extended it to say that the framers of our Constitution could have never intended that the fundamental rights shall be extended only for the benefit of the majority. Thus, the court reinforced the intention of the framers of our Constitution that it must step in whenever there is a violation of the fundamental rights even if the right of a single individual is in peril.
Another notable aspect of Justice Misra’s opinion is his emphasis on the concept of progressive realisation of rights. In other words, when there is a progressive interpretation of the Constitution, the court cannot take a retrograde step while interpreting the ambit of fundamental rights. It was held that an individual can surrender his or her autonomy wilfully to another individual and that their intimacy in privacy is a matter of their choice.
Similar views on dignity, autonomy and equality were echoed by Justice Nariman who held that the LGBTQ+ community “are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them”. Justice Chandrachud primarily relied on the principles of constitutional moralism and transformative constitutionalism, and held that the LGBTQ+ community should not live with the fear of persecution: the State has no business to intrude into the personal / intimate sphere of an individual. Justice Malhotra, who gave a similar opinion, recorded that history owes an apology to the members of the LGBTQ+ community and their families for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.
For over seven decades, the LGBTQ+ community lived with a constant fear of persecution. They were silenced by a colonial-era law, which the law makers refused to remove from the statute books. The judgement of the Supreme Court upholding the rights of the LGBTQ+ community signals the beginning of a much-needed social change in India. The constitutional notions of equality, as highlighted by the Supreme Court, should act as a guiding laser for society and work places. What we need is an inclusive society to alleviate the sufferings of the LGBTQ+ community. The judgement of the Supreme Court should be furthered by bringing in laws prohibiting any sort of discrimination based on sexuality even in the private sphere. Indeed, the kind of rampant discrimination that exists at the ground level must disappear completely for an actual realization of this judgment.
1. In 1994, NGO files a petition in Delhi HC seeking repeal of Sec. 377, after Tihar jail inmates denied condoms; fails to follow it.
2. In 2001 public interest litigation filed by NAZ Foundation in Delhi High Court seeks repeal of Section 377.
3. Between 2004-2008, Delhi HC dismisses petition and activist moves Supreme Court which asks Delhi HC to reconsider. Union home, health ministers file contradictory affidavits. The Centre submits gay sex is immoral. The HC calls for scientific evidence.
4. Delhi HC on July 2, 2009, decriminalises homosexuality. Religious groups, individuals challenge the verdict.
5.Supreme Court in December 2013 sets aside 2009 Delhi HC order, leaves matter for Parliament to decide.
6. In 2015, Lok Sabha votes against introduction of private Bill by Congress MP Shashi Tharoor to decriminalise homosexuality.
7. Three-judge Supreme Court bench says all pleas will be reviewed afresh by a five-judge constitutional bench.
8. In August 2017, SC upholds right to privacy, says sexual orientation is essential component of identity and the rights of LGBTQ.
9. In January 2018, SC bench headed by CJI Dipak Misra says 2013 ruling to be reconsidered, sends it to larger bench.
10. In July 2018, SC says it’s up to a Constitutional bench to take a call on the 150-year-old ban on gay sex.
(The author is a senior advocate who appeared for the petitioners before the Supreme Court. The author acknowledges the assistance of Vinoothna Vinjam, student of law, and Rahul Unnikrishnan, advocate)