The Supreme Court on Thursday pronounced that Section 377 of the Indian Penal Code is unconstitutional. The five-judge bench read out four judgments, all of which held that the law, which criminalises ‘unnatural sex’ between consenting adults, and has been used to target the LGBTQI+ community in India, has been struck down in so far as it criminalises same sex intercourse.
The bench comprised of Chief Justice of India Dipak Misra, Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra. The justices penned down four separate but concurring judgments -- one by Justice Dipak Misra and Justice Khanwilkar, and one each by the other three judges.
The court began pronouncing its judgment at 11.35 am on Thursday, and Chief Justice of India Dipak Misra started reading out the judgment for himself and Justice Khanwilkar with a quote from German thinker Johann Wolfgang von Geothe: "I am what I am, so take me as I am."
"We must recognise the concept of identity. The core is self determination. The view of majoritarianism is constitutionally untainable. Our Constitution is a dynamic document. The primary objective of the constitution - inclusive society and dynamic society," the judgment said.
"No one can escape from their individuality," the CJI said, citing John Mills. "One defines oneself. Sans identity the name only remains a plain factor. Emphasis is laid on the identity of a person. The sustenance of identity is the pillar of life."
"Certain sections of our society have been living in shackles of exclusion. Have to vanquish prejudice and embrace inclusion and ensure equal rights. Prejudices are deeply ingrained in society," Justice Dipak Misra said. "Majoritarian views and popular views cannot dictate constitutional rights. LGBT community possess human rights like all other sections of society. Equality is essence of constitution. 377 is arbitrary," he said.
Justice Nariman quoted the NALSA and Puttaswamy judgments and said, "Private acts of individuals is not the law's domain."
"Mental Healthcare Act has been discussed and recognition has happened even by the Parliament that homosexuality is not a mental disorder," Justice Nariman said. He also discussed Yogyakarta principles and said that they will directly apply here.
Justice Chandrachud read out his judgment next, and said, "Tragedy and anguish which 377 inflicts must be remedied. Democratic as it is - our Constitution allows dissent."
Section 377 crimalises anal and oral sex, and claims that it goes against ‘the order of nature with any man, woman or animal’. The maximum punishment under this law is life imprisonment. Section 377 was first introduced in India in the 1800s. Apart from beastiality, it criminalises any sexual act between people of any gender that isn’t heterosexual penile-vaginal sex. Therefore, even consensual same sex relations between two adults is deemed criminal.
In July, the apex court heard the arguments on a batch of petitions demanding that this law be scrapped. The petitioners included NGO Naz Foundation, parents of queer people and a collective of human rights groups under the umbrella of Voices against 377. The Centre in its reply said it was leaving it to the wisdom of the Supreme Court to decide if Section 377 was constitutionally valid. However, it urged the five-judge constitution bench to confine to deciding the challenge to the law, without any scope that may give rise to members of the LGBT community claiming civil rights including right to property, inheritance marriage, adoption and other rights. The Additional Solicitor General told the court that if it intended to touch on other issues like same-sex marriage, then the Centre will file another detailed affidavit.
Timeline of the case
In 2001, Naz Foundation challenged this law in the Delhi High Court, along with the collective Voices Against 377. After 8 long years, the HC delivered a landmark judgement, where it declared that the law would exclude sexual acts between two consenting adults, no matter their gender or sexual orientation.
In its verdict, the High Court declared that Section 377 went against Article 21 of the Constitution, which guarantees the basic right to privacy to all individuals.
However, several organisations - political and religious - filed petitions in the Supreme Court claiming that reading 377 to exclude sexual acts ran afoul of the institution of marriage and that the right to privacy did not include the right to commit a criminal act.
In a step that took the country back several decades, if not centuries, the SC in 2013 overturned the Delhi HC judgement. It held that only the Parliament could only decriminalise homosexuality, not a court.
Despite several curative petitions being filed subsequently, the court never listed it for hearing until recently.
Why is it unconstitutional
Section 377 directly goes against Article 21 of the Constitution, which guarantees a right to life and liberty for all individuals. This includes the right to dignity, privacy and autonomy. In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right and sexual orientation, the court said, is ‘an essential component of identity’ and that the rights of queer people are ‘founded on Constitutional doctrine’.
It also said that the section was in contravention to Articles 14 and 15, which guarantee equality and prohibit discrimination.