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(This story was first published on 10 July 2018. It has been reposted from The Quint’s archives to mark three years since Section 377 was read down.)
History has been made. It is no longer a criminal offence to be gay in India.
On Thursday, 6 September, the Supreme Court of India delivered a landmark judgment, decriminalising a 157-year-old British-era law that criminalised even consensual homosexual relations.
Four days of hearings on the matter were held from 10-17 July 2018. The Constitution Bench, comprising Chief Justice of India Dipak Misra, as well as Justices Rohinton Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra delivered a unanimous judgment.
“First step towards vanquishing enemies of prejudice and injustice has to be taken”, read the judgment. “We must get rid of prejudice and discrimination. Concept of Constitutional morality creates responsibility of State to protect. Fidelity to constitutional morality must not be confused with popular sentiment.”
But what is the background to this case? What were the arguments raised against Section 377?
Section 377 of the IPC criminalises “carnal intercourse against the order of nature with any man, woman or animal”. In addition to bestiality, this basically covers any sexual act between people of any gender that isn’t heterosexual penile-vaginal sex, regardless of consent. Under this provision, therefore, even consensual same sex relations are criminal offences.
While Section 377, which has existed in its current form ever since the IPC came into force in 1860, also covers oral and anal sex among heterosexual couples; it has mostly come to be used against homosexuals and transsexuals, often as a targeted method of harassment.
The present case before the Supreme Court is the result of a long-running movement against the discriminatory legal provision.
The Delhi High Court: Victory for LGBTQ+ Rights
The Supreme Court’s Koushal Judgment: A Step Back
Back to the Supreme Court: Chance for Redemption
Rather than confine itself to just the curative petitions against the 2013 Koushal judgment, the Supreme Court decided to comprehensively assess whether or not Section 377 violates fundamental rights under the Constitution. Senior advocates Mukul Rohatgi, Shyam Divan and CU Singh had also asked the bench to consider a declaration on the broader rights of the LGBTQ+ community, as well as a declaration prohibiting discrimination against the community. While while Justices Chandrachud and Nariman seemed amenable to the idea, the CJI was not too keen on expanding the scope of this judgment that far, and it is unclear if the other judges will agree to do so.
Nevertheless, the Supreme Court will need to hold that the Koushal judgment was incorrect and needs to be set aside. To do this, the broad arguments are as follows:
Once the Koushal judgment is out of the way, the judges can then move on to the arguments that Section 377 violates numerous fundamental rights under the Constitution.
The broad contours of the arguments raised by the lawyers against the provision, including Divan, Rohatgi, Singh as well as Menaka Guruswamy, Arvind Datar, Ashok Desai and Krishna Venugopal are as follows:
Article 21- Right to Life and Personal Liberty
The right to life and liberty has a wide ambit, including the right to privacy, dignity and autonomy. This right can be restricted in a proportionate manner for a legitimate aim which is necessary for democratic society – but after the 2017 right to privacy judgment, it is clear that Section 377 is not an acceptable restriction.
Article 14 - Right to Equality
This is a two-pronged argument.
First, having an offence like Section 377 violates the obligation on the State to ensure equal opportunity for vulnerable sections of society.
Secondly, Section 377 violates the traditional Article 14 test. It is not based on an “intelligible differentia” since there is no difference between consenting individuals engaging in sexual acts “against the order of nature”, and those engaging in sexual acts in accordance with this vaguely defined standard. There is also no “rational nexus” between criminalising consensual homosexual relations and any legitimate State purpose – a sense of morality, for instance, is too ambiguous and subjective.
Article 15 - Prohibition of Discrimination
Article 15 of the Constitution expressly bars discrimination by the State on the basis of “sex”. The Delhi High Court read this to include sexual orientation, which meant that Section 377 unlawfully discriminated against the LGBTQ+ community. The petitioners argue that this is the appropriate approach to understanding Article 15, since it enables citizens to enjoy their rights fully, and is a more appropriate reflection of our improved understanding of gender today.
Article 19(1)(a) - Freedom of Expression
In 2014, the Supreme Court in the famous NALSA case held that the right to freedom of speech and expression includes a right to expression of one’s personal identity through “dress, words, action or behaviour or any other form.” The petitioners argue that sexual orientation and sexual expression fall within this concept, and so Section 377 violates Article 19(1)(a).
It is also argued that the criminalisation of consensual homosexual relations has a chilling effect on members of the LGBTQ+ community, since they cannot express themselves fully. Menaka Guruswamy expressed this powerfully on the second day of hearings, saying:
Before 2017, it was unclear whether or not the Supreme Court would ever be able to revisit its decision on Section 377. The Koushal judgment had dismissed the sophisticated arguments of Justices AP Shah and S Muralidhar of the Delhi High Court, as well as those raised by the excellent legal teams for Naz Foundation and others before the apex court as well. If these were not good enough, it was difficult to see what would be.
However, expectations have changed drastically since the right to privacy judgment. A majority of the judges specifically took aim at Koushal, and took apart the foundation of the 2013 decision. While they refrained from overruling Koushal in so many words, they made more than enough arguments to not just show that Koushal was wrong, but that the rights of the LGBTQ+ community had to be protected, including their right to indulge in consensual sexual acts.
During the course of the arguments, CJI Misra made it clear that the apex court’s judgment will not be contingent on public opinion, and will instead focus on constitutional morality.
Another positive from the hearing was the acceptance, without any debate, by the judges that homosexuality is not a mental disease but central to their identity – something which had taken up significant time during both previous proceedings.
The government also decided not to contest the issue, leaving it up to the wisdom of the court – this meant the only support for Section 377 came from a few individuals and religious groups, none of whom made any reasonable legal arguments.
The legal arguments against Section 377 have, therefore, received a fillip, and it is difficult to see how the court could possibly hold it to be constitutional, especially after Justice Nariman clarified that the courts would not wait for Parliament to amend the law if they thought it violated fundamental rights.
The Possibilities
There were two options before the apex court:
While some of the arguments on the constitutionality of the provision would imply striking down the provision as a whole, if taken to their logical conclusion (such as the argument against the vagueness of the term “against the order of nature”), the Court has gone with Option 2.
This is because doing so will ensure that there is a provision for criminalising non-consensual sexual acts where the victim is not a woman. The Prevention of Child Sexual Offences Act 2012 (POCSO) criminalises sexual abuse of any child, but the rape provisions in the IPC currently only recognise acts by a man against a woman. Retaining Section 377 for non-consensual sexual acts is, therefore, essential to criminalise sexual assault of men, and crucially, members of the transgender and intersex communities.
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Published: 10 Jul 2018,07:49 AM IST