Section 377 Decriminalized: SC Upholds Right to Equality

Published on 06 Sep 2018 by Shreya

In its landmark judgement today, a 5 judge bench of the Hon’ble Supreme Court of India has struck down key components of Section 377 that criminalized “specific sexual acts between adults” taking a major step towards eliminating the discrimination of the LGBTQ community in the country. The bench consisting of the Chief Justice of India Dipak Mishra, Justice DY Chandrachud, Justice RF Nariman, Justice Indu Malhotra and Justice AM Khanwilkar unanimously overruled the 2013 judgement of the Apex Court and stated that denial of the right to sexual orientation is akin to the deal of right to privacy.

The bench further quoted German thinker, Johann Wolfgang von Goethe, who had said, “I am what I am, so take me as I am.” and stated that they hoped that the judgement will pave the way to creating a league of rights giving approval and recognition to homosexuality.

Like many other acts still prevalent and applicable in India, the Indian Penal Code was enacted in India during the British Rule. The genesis of Section 377 was initially drafted in England as part of the Buggery Act, 1533, which defined buggery as an unnatural sexual act against the will of God and man. In 1828, the Buggery Act was repealed and replaced by the Offences against the Person Act, 1828, which broadened the definition of unnatural sexual acts making prosecution of not only rapists easier, also homosexuals. The definition of Section 377 as was still existent in India till 6th September, 2018, still found its basis in these erstwhile and outdated predecessors.

In 2009, the Naz Foundation, an Indian NGO working in the field of HIV/AIDS and sexual health, started the fight towards decriminalization of Section 377. The NGO challenged the existence of Section 377 stating that it is violative of Article 14 (equality before the law), Article 15 (on grounds of religion, race, caste, sex or place of birth) and Article 21 (protection of life and personal liberty) of the Indian Constitution.

Following the challenge, the Delhi High Court in July 2009 ruled in favour of the petitioners decriminalizing Section 377 stating that it is indeed a violation of fundamental rights. The Court, however, stated that Section 377 will continue to be applicable to applicable to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

In December 2013, however, the Supreme Court overturned the Delhi High Court decision, owing to numerous appeals filed before it regarding the same, on the grounds that either repealing or amending the provision of Section 377 is at the discretion of the Parliament and not the High Court.

In February 2016, while hearing a petition regarding the same matter, the then CJI TS Thakur directed that the petition will be reviewed by a 5 judge constitutional bench later. The July 2018 judgement is a result of this prolonged struggle which also follows the August 2017 Right to Privacy judgement of the Apex Court which mentioned that a person’s sexual orientation is an important aspect to Right to Privacy which is a fundamental right under Article 14, 15 and 21 of the Constitution.

In the current judgement, the Chief Justice of India Dipak Misra, writing for himself and Justice AM Khanwilkar, ruled, “Thus analysed, Section 377 IPC, so far as it penalizes any consensual sexual activity between two adults, be it homosexuals (man and a man), heterosexuals (man a woman) and lesbians (woman and a woman), cannot be regarded as constitutional.  

However, if anyone, by which we mean both a man and a woman, engages in any kind of sexual activity with an animal, the said aspect of Section 377 IPC is constitutional and it shall remain a penal offence under Section 377 IPC. Any act of the description covered under Section 377 IPC done between the individuals without the consent of any one of them would invite penal liability under Section 377 IPC.” 
The Court acknowledged that Section 377 was being used as a weapon in the hands of the majority to exploit, harass and seclude the LGBTQ community leading to the community constantly facing disdain and prejudice at the hands of the majority. The Court stressed the importance of the individuality of a person and stated that the LGBTQ community possesses equal rights as every other citizen of the country as per the Constitution of India. The Court further said that it has no hesitation in saying that Section 377, in its present form, is against the fundamental right to privacy and human dignity.

The Apex Court further stated that the Indian Constitution is a “living and organic” document which must be amended to meet the needs and demands of the society that are ever-evolving. This must indeed be the golden principle to which the Court should assign its allegiance and aim to fight against the injustice and inequality that attempt to creep into the society. That the Fundamental Rights mentioned in the Constitution are “dynamic and timeless” rights of equality and liberty and to interpret them as static without recognizing their evolving nature is against the principles of our Constitution.

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