A five-judge Supreme Court bench sat down to hear petitions against Section 377 on Tuesday. The bench comprises Chief Justice of India Dipak Misra, and Justices Indu Malhotra, Rohinton Fali Nariman, AM Khanwilkar, and DY Chandrachud.
Section 377 of the Indian Penal Code criminalises sexual activities that are “against the order of nature”. In effect, it criminalises several types of consensual acts between individuals, including gay sexual acts.
On Wednesday, the Centre filed an affidavit claiming that it left the question of the constitutional validity of Section 377 to the “wisdom of the court”. It claimed that it had no objections to the bench declaring the application of the law to consensual, private acts between adults unconstitutional.
At the same time, it asked that the Union of India be allowed to file counter-affidavits should anything beyond the Section’s constitutional validity be discussed.
History and origin of Section 377
The origins of Section 377 date back to British India. The law draws inspiration from the Buggery Act of 1533, enacted in Britain under King Henry VIII, and its successor, the Offences against the Person Act of 1828. The 1828 act, while criminalising “unnatural sexual acts” and indicting homosexuals, also sought to make it easier to prosecute rapists.
Drafted by Thomas Macaulay, Section 377 was enacted in 1860. While seeking to target bestiality, it also targeted homosexual acts. While the United Kingdom passed a law that decriminalised homosexuality in 1967, and also legalised same-sex marriage in 2014, Section 377 has remained a part of the Indian Penal Code since it was issued.
The Naz Foundation verdict of 2009
In 2001, a non-governmental organisation called the Naz Foundation (India) Trust filed a lawsuit in the Delhi High Court seeking to allow homosexual relations between consenting adults. The High Court dismissed their lawsuit, following which the NGO appealed to the Supreme Court.
The SC asked the High Court to reconsider its verdict, leading to a landmark 2009 judgment that overturned the aspects of 377 that were applicable to consensual, private acts between adults. The verdict by Justices AP Shah and S Muralidhar held that discrimination on the basis of sexual orientation amounted to a violation of Article 15 of the Indian Constitution (Right to Equality before Law).
Following this, several petitions filed against the verdict were dismissed. However, in 2013, hearing one such petition challenging the Delhi HC verdict, Justices GS Singhvi and SJ Mukhopadhyaya dismissed the verdict in the Supreme Court. They held that no aspects of Section 377 went against the constitution, and that the body possessing the authority to make such a change was the Parliament and not the judiciary.
Challenges to Section 377 post-2013
Several attempts have been made to decriminalise homosexuality since the 2013 SC judgment. Shashi Tharoor, a Lok Sabha member from Thiruvananthapuram, made two attempts in 2015 and 2016 to introduce private members’ bills in the Parliament to make consenting adults exempt from the provisions of Section 377. However, the introduction of the bills was voted against and they were not discussed.
The newfound interest in the re-examination of 377 by the Supreme Court comes at the heels of the right to privacy judgment put out in August 2017. This judgment declared the right to privacy a fundamental right, claiming that it is essential for the life and liberty of the individual, and thereby placing it under Article 21 of the Indian Constitution (Right to Life and Liberty).
In light of this, the application of Section 377 to consenting adults in private spaces comes under question. The verdict itself said, on the rights of LGBTQ+ individuals, that they are “real rights founded on sound constitutional doctrine”.
The examination of Section 377 that is underway at the moment comes as a response to several petitions filed against the law. In January this year, a petition filed by Bharatnatyam dancer Navtej S Johar, and celebrity chef Ritu Dalmia, among others, held that the law violated fundamental rights under Article 21.
A similar petition questioning the constitutional validity of the law was filed by hotelier Keshav Suri in April. In May, 20 IIT students and alumni filed a petition against 377 on grounds that it had caused them, and a larger group of more than 300 individuals whom they claimed to represent, severe stress and mental trauma.
The Supreme Court hearing on Section 377 is set to continue from next Tuesday onwards.