On Thursday 6th of September 2018, the Supreme Court on its ruling decriminalized consensual gay sex to pull down the old British law that had violated gay sex, marriage, and rights. This verdict by the apex court has triggered celebrations of victory among gay, lesbian, bisexual, transgender, queer and activities alike. The LGBT group have seen this law as a breakthrough in building the new all-inclusive India.
The Supreme Court during its historic judgement described the Parts of Section 377 of the Indian Penal Code which contains the punishments for unnatural sexual offenders as “irrational, indefensible and manifestly arbitrary”.
WHAT DOES SECTION 377 OF IPC SAY?
Section 377 of IPC states that “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.”
In its explanation, penetration is enough to be regarded as having an intercourse that violates the law in this section.
WHAT IS THE RULING OF THE SUPREME COURT?
Section 377 of the Indian Penal Code was introduced by the British rule of India in 1861. It is modelled based on the Buggery Act OF 1533 and its aim was to criminalize all sexual activities that are deemed unnatural.
In its Historic judgment, the Supreme Court stated that the application of Section 377 of the Act to gay sex acts between consensual adults is in a fact unconstitutional.
The ruling states that Section 377 can be applied to other sexual acts like bestiality.
Justice Indu Malhotra who was a member of the bench that delivered the judgment says, “History owes an apology to members of the community for the delay in ensuring their rights.”
However, aspects of Section 377 that concerns unlawful sex with children and animals shall be enforced.
The court during her delivery of the judgments disclosed that its earlier 2013 ruling which re-criminalized any consensual unnatural intercourse has been set aside.
WAS SECTION 377 A WEAPON OF HARASSMENT?
The bench which also had Justices R F Nariman, A M Khanwilkar and D Y Chandrachud as members pulled down the parts of the IPC Act that had harassed and violated the right of equality and living a life of dignity.
The apex court in its 493-page judgment ruled that Section 377 was a weapon designed to harass, discriminate and intimidate members of the LGBTQ community.
WHAT WAS THE REACTION OF THE LGBTQ COMMUNITY of INDIA?
Throughout the country, members of the gay community were seen in clusters around their television sets in anticipation for the release of the verdict.
There were tears of joy and emotional hugs when the ruling was displayed on air and online.
Cakes were cut and the rainbow flags unfurled by the expectant members of the LGBTQ group as a show of pride and happiness to the verdict. The ruling strips the society of the right to decide between adults what can be an acceptable sexual relationship.
Filmmaker Karan Johar who has been very vocal on gay rights related issues described the jury as a big success on humanity’s struggles for freedom. In his twitter account, he wrote “Historical judgment!!! So proud today! Decriminalizing homosexuality and abolishing #Section 377 is a huge thumb up for humanity and equal rights! The country gets its oxygen back”.
WHO WERE THE PETITIONERS IN THE SUIT?
The jury is a response to a petition that was filed by dancer Navtej Jauhar, Sunil Mehra, Ritu Dalmia, Aman Nath, Keshav Suri, Ayesha Kapur and 20 former and present students of IITs.
In their suit, they had prayed the court to decriminalize consensual sexual intercourse between gay adults by nullifying the 158-year-old Section 377 of IPC by declaring it unconstitutional and illegal.
WHAT ARE THE COMMENTS OF THE BENCH?
The two Justices CJI Misra and Khanwilkar who wrote the judgments described lack of self-expression as an invitation to death.
In a statement, the bench said that it is the responsibility of the courts to protect the dignity of a person and that an individual’s right to dignity is a part of the fundamental right.
Furthermore, the court described an individual’s sexual orientation as a “biological phenomenon” and that any stigmatization based on the ground is a violation of the fundamental human rights.
Justice Chandrachud said that members of the gay community were often targeted and suppressed because of Section 377. This he said while reading out the portion of his judgment. “we cannot change the history but can pave a way for a better future” he said.
The Supreme Court declared that India is among the nations of the world that had assented to the International treaties on LGBTQ rights and therefore is its responsibility to keep to its terms.
WHAT ARE THE VIEWS OF HUMAN RIGHTS BODIES AND OTHER ORGANIZATIONS?
Anian Joshi a member of the Society for People, Awareness, Care and Empowerment has described the verdict as a landmark and a starting of a journey. In his words “We know we have a long way to go in terms of right to adoption, right to marriage but it is a very welcome beginning.”
In a tweet, the Congress showed its pleasure with the judgement and added intersex and asexuality to the LGBTQ community. “we join the people of India & the LGBTQIA+ community in their victory over prejudice. We welcome the progressive and decisive verdict from the Supreme Court and hope this is the beginning of a more equal and inclusive society” it said.
The UN in India has shown its interest in the verdict by saying that an individual’s sexual expression and orientation is a major part of the society and in the world at large. In airing her support, the organization described violence and discrimination on the grounds of sex as a gross violation of human rights.
Justice AP Shah who delivered the July 2009 Delhi High Court Judgement that decriminalized homosexual acts said, “sixty-eight years after the founding fathers of the Republic of India encoded the right to freedom of life and liberty, the Supreme Court has finally upheld the right of every human being to be free regardless of sexual orientation or identity.”
He said that this is the beginning of an era where Section 377 of IPC will no longer be used as a force for intimidation and discrimination against millions of Indians because of their sexual orientation and self-expression. “the rule of the Supreme court will not only impact India but will also undoubtedly have huge transnational value” he said.
HOW DID THE JOURNEY BEGIN?
The issue started with the Naaz Foundation an NGO that represents gay rights in 2001 filed a suit in the Delhi High Court seeking to decriminalize homosexual acts.
At first, it was struck out but the Supreme Court returned the petition to the lower court for a reconsideration. The hearing was a contentious one including the government itself.
However, in 2009, sexual intercourse between consensual adults of the same gender was decriminalized by the Delhi High Court. It also declared that Section 377 of IPC is contradictory with Article 21 of the Constitution of India.
In 2013, the Supreme Court upturned the verdict of the High Court and dismissed any plea against it.
In 2014, a two-judge bench of the Supreme Court in a case between NALVSA and Union of India proved that the apex court will be more open to hearing on the subject by granting a personhood to transgenders.
On 18th December 2015, Shashi Tharoor a Lok Sabha of the Indian National Congress introduced a personally sponsored bill seeking to outlaw section 377 of IPC and consequently decriminalize same sex. However, the bill did not pass the first reading. In March 2016, the bill was voted down again when he made attempts to reintroduce it.
On 2nd February 2016, the final jury on the curative petition brought before the Supreme Court by the Naaz foundation was held. The bench which was presided by the CJN T. S. Thakur ruled that the 8 curative petitions on its table will be reviewed by a bench of five judges of the Supreme Court.
In 2017, the Supreme Court in a suit between Justice Puttaswamy and Union of India ruled that privacy is a recognized fundamental right. While delivering the judgment, Justice Chandrachud stated that Section 377 of IPC was not in tandem with Articles 14, 15 and 21 of the Indian constitution of which rights to privacy and sexual orientation and expression is an inseparable part of the rights provided in the constitution.
In a case between Navtej Singh Johar and Union of India 2018, the bench of five judges of the Supreme Court entertained the suit challenging the constitutionality of Section 377 of IPC. However, the Government maintained a position of neutrality on the matter and depended on the wisdom of the Court in deciding on Section 377. The rights to privacy and dignity were invoked by the petitioners against the constitutionality of Section 377.
After several days of hearing on the matter, the court reserved to pass its verdict on the 17th of July 2018. The final verdict was announced on the 6th of September 2018 which declared section 377 as a violation of the rights of homosexuals to privacy and self-expression and is unconstitutional.
Sexual intercourse between a consensual adult of the same gender was an act punishable by life imprisonment in accordance with section 377 of IPC.
WHAT ARE THE OPPOSITION AND CRITICISM TO THIS VERDICT?
The Rashtriya Swayamsevak Sangh is credited to have said that although homosexuality is not a crime based on his views but he cannot support such relationships since it is against the nature.
The views of those who are opposed to the legalization of same-sex relationships are that it not in consonance with the moral and ethics of the society.
However, critics believe that what is wrong in religion should not be wrong in law and morality cannot be the grounds on which a fundamental right is based. A moral wrong becomes a legal wrong when its consequences are harmful to the society and not just the guilty person(s).