Battle to remove Section 377: The story so far

On Monday, the movement to decriminalise the colonial-era Section 377 which criminalises 'unnatural sex' including consensual sex between same-sex adults got a shot in the arm with India’s apex body willing to reconsider its 2013 decision.

The court said that a larger bench of judges will re-examine the constitutional validity of the law. The top court observed: “What is natural to one may not be natural to others. A section of people or individuals who exercise their choice should never remain in a state of fear.”

Homosexuality was criminalised by the British in 1861, claiming it was against the order of nature. Here’s a brief history of India’s fight to repeal the colonial-era law.

Here is a timeline of the case

July 2009: Delhi HC decriminalises homosexuality

In a move that was hailed across the country, in July 2009 the Delhi HC had decriminalised homosexuality among consenting adults, deeming the law to violation of Article 14,15 and 21 of the Indian Constitution.

The bench had said: “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21,14 and 15 of the Constitution”

The court had observed that as it stands Section 377 denies a gay person the right to ‘full personhood’, which is implicit in notion of life under Article 21 of the Constitution. 

In its 105-page judgment, the bench added, “As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.”

It however upheld criminalisation for non-consensual and non-vaginal sex involving minors.

Here are the relevant articles of the constitution: 

Article 14 - Equality before law irrespective of religion, race, caste, sex or place of birth

Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Article 21- Protection of life and personal liberty

The bench had further noted: “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.”

December 2013: SC overturns HC’s decision

In an earth-shattering move, a two-judge bench overruled the Delhi HC's decision calling it 'legally untainable'. A two-judge bench observed that a ‘miniscule fraction of the country’s population were members of the LGBT committee

The bench said: “The High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgender and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”

The court also said that repealing Section 377 should be left to Parliament, not the judiciary and said: “This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”

The order said: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.”

The Naz Foundation’s review petition in 2014 was also quashed by SC.

2016: Five petitioners move SC over Section 377

Petitions by well-known LGBTQI activists moved SC saying their along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”

August 2017: SC upholds Right to Privacy

The Supreme Court in a landmark judgement in August 2017, held Right to Privacy as a fundamental right while observing that ‘sexual orientation is an essential attribute of privacy noting that ‘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’.

January 2018: SC agrees to reconsider 2013 verdict

The Supreme Court agreed to reconsider its 2013 verdict criminalising gay sex and referred to a larger bench the plea challenging the colonial penal provision, observing societal morality "changes from age to age." The apex court also said that a "section of people or individuals who exercise their choice should never remain in a state of fear".

 Congress, which when in power had yo-yoed between different positions on decriminalising homosexuality, welcomed the Supreme Court's decision to reconsider its 2013 verdict, criminalising gay sex, saying section 377 of the IPC was "archaic" and had no place in the 21st century.

The BJP’s official stance also seemed to be of neutrality with minority affairs minister Mukhtar Abbas Naqvi noting:  “I cannot comment on the matter of LGBTQ community becoming a minority community in future. The matter is in Supreme Court and let us wait for the direction of the Supreme Court on this and then after that the government will decide. Whatever law ministry feels is appropriate after that will be done." 

BJP Rajya Sabha MP and one of the most homophobic politicians in the country, Subramanian Swamy who has called the sexual orientation a ‘handicap’ also seemed to soften his stance, even though he came across as a bigot while doing so, appearing to state that it was fine as long as members of the community didn't celebrate or flaunt it. 

He said: “As long as they don't celebrate it, don't flaunt it, don't create gay bars to select bars to select partners it's not a problem. In their privacy what they do, nobody can invade but if you flaunt it, it has to be punished and therefore there has to be Section 377 of the IPC."

All in all the time is ripe to say goodbye to one of the most archaic laws that still exist in our land. Hopefully,the  judiciary and legislative bodies, irrespective of their personal views, can realise that a state cannot suppress the rights of an individual. 

As senior advocate Arvind Datar, appearing for one of the petitioners pointed out: “You can't put in jail two adults who are involved in consenting unnatural sex.”

It was wrong when in 1861 when the law was constituted by the British, and it’s wrong in 2018 and hopefully this will be the year we can correct this grave injustice.