De-criminalization of Section 377 in India

INTRODUCTION

The Supreme Court passed a historic judgment on 26th September 2018 which gave an identity to a minority community and lifted a colonial ban on gay sex. The road to this freedom is nothing less than a battle fought. The bench led by CJI Dipak Misra restored the historic Delhi High Court judgment[1]. The petition which led to decriminalization of homosexuality started way back in 2001. It took almost two decades for the LGBTQ community to be recognized by the courts. And after a long court battle, the victory achieved is hailed by the minority community.

Apart from criminalizing homosexuality, this section was a dreaded tool against other kinds of “unnatural sexual” acts as well. It was its arbitrary, irrational and archaic nature which led to its repeal by the Supreme Court. After the Supreme Court overturned the Naz Foundation judgment in 2013, five petitions reached the Supreme Court until 2017 challenging the constitutional validity of Section 377.

TIMELINE OF EVENTS:

The Delhi High Court judgment decriminalized homosexuality among consenting adults in violation of Article 14, 15 and 21 of the Constitution of India. In a 105 page judgment Bench comprising Chief Justice A P Shah and Justice S Murlidhar had said that “We declare section 377 of Indian Penal Code in so far as it criminalizes consensual sexual acts of adults in private is violative of Articles 21,14,and 15 of the Constitution,”. They further added that “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.”

Article 14 which is Equality before law guarantees equality to its citizen, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.

The petition filed by Naz foundation, an NGO working for the betterment in the field of HIV/AIDS and sexual health claimed in the court that the section is ancient in nature and keeping up with the need and change in the society, it simply criminalizes and denies basic human rights to entire community/individuals (a minority). They further submitted that the clear motive behind section 377 lacks a clear legislative objective as there is rational nexus between natural and unnatural sexual acts as defined by the section.

The respondents of the case i.e Government of NCT & Ors. pleaded in response to the petition filed on the lines of public acceptance and morality and the perils of HIV/AIDS contraction among the LGBTQ community.

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The celebration of the acceptance of a minority community did not last long as the Supreme Court overturned the Naz foundation case in 2013 on the grounds that it is “against the order of nature”. The Supreme Court bench of Justices G. S. Singhvi and S. J. Mukhopadhaya stated that “In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”[2] But the court opined that the Parliament should further debate about the future of the minority community. Soon a review petition was filed in the court by Naz Foundation stating that the criminal code enacted by the East India Company in 1860, with the passage of time had become arbitrary and unreasonable to be still implemented in the 21st century. On the other hand the Centre stated that “The judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution.” 

But after several review petitions filed in the Supreme Court, Chief Justice of India Dipak Misra along with Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra heard the petition gave a unanimous decision to uphold the 2009 Delhi High Court judgment. The court stated that “The law must be interpreted as per the requirement of changing time”.

The court was of the opinion that “Consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice. Section 377 results in discrimination and is violative of constitutional principles,” 

The judiciary has given a rational argument towards the acceptance of LGBTQ community and has further given an apology for the harassment and ostracism that they have suffered through the centuries. The decision gave a ray of hope of social acceptance and upliftment to those affected by this decision. With a positive attitude, the court dismissed the matter and henceforth for once and all repealed the archaic section.


[1] WP(C) No.7455/2001

[2]  CIVIL APPEAL 10972 OF 2013

This article has been authored by Aditi Khatri.


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