Section 377 and How the Supreme Court Made History

On 6 September 2018, the SC delivered a landmark judgment, decriminalising a 157-year-old British-era law.

Will the Supreme Court find Section 377 to be unconstitutional?

(Photo: Erum Gour/The Quint)

(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?

The Background

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

• In 2001, Naz Foundation, an NGO which works on HIV/AIDS and sexual health issues, challenged the constitutionality of Section 377 before the Delhi High Court. A number of organisations fighting for LGBTQ+ rights, such as Voices Against 377, were also impleaded in the case.
• After an initial struggle to get the case heard, the Delhi High Court delivered a landmark judgment in 2009, that Section 377 had to be read down to exclude sex acts between consenting adults, regardless of sexual orientation.
• The Delhi High Court held that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to fall foul of the right to equal treatment (Article 14) and the prohibition of discrimination (Article 15).

The Supreme Court’s Koushal Judgment: A Step Back

• An appeal was filed against this decision in the Supreme Court by several organisations (religious, political and social) and individuals (including one Suresh Koushal), who claimed that the right to privacy did not include the right to commit an offence, and that decriminalising homosexuality would affect the institution of marriage.
• In a judgment that surprised many, the Supreme Court in 2013 overturned the decision of the Delhi High Court, holding that Section 377 was not unconstitutional. The judges held that if homosexual acts were to be decriminalised, only Parliament could do this, not the courts.

Back to the Supreme Court: Chance for Redemption

• Several curative petitions were filed against this Supreme Court judgment, but had not been listed for several years. Meanwhile, fresh writ petitions were also filed against Section 377 and the judgment. These have been clubbed together by the Supreme Court, along with intervention applications by Naz Foundation, Voices Against 377 and an association of mental health professionals.
• The lead petition on the Supreme Court documents is the petition filed by Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra. Other petitioners include hotelier Keshav Suri, activist Harish Iyer, and a group of IIT alumni.

Getting Around the 2013 Koushal Judgment

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:

1. The Koushal judgment is no longer good law after the nine-judge bench decision in the right to privacy case. In 2017’s landmark Puttaswamy judgment, the Supreme Court affirmed that the right to privacy was a fundamental right, and specifically noted that this included one’s sexual orientation.
2. Koushal had rejected the idea that Section 377 violated the right to life and liberty on the basis that only a “minuscule minority” was affected by it. This (frankly obscene) argument was denounced in Justice Chandrachud’s plurality judgment (on behalf of four judges) and Justice Sanjay Kishan Kaul in the right to privacy case.
3. The Koushal judgment is also wrong in law because it ignored the potential for misuse of Section 377 to deprive the LGBTQ+ community of its rights, which it was obligated to do. Substantial evidence of this misuse has been submitted by parties to the case, including the threatening of a transgender HIV/AIDS activist by the police.

Why Section 377 is Unconstitutional

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:

“I asked our petitioners, what must it take to live in this shadow? How strongly must you love, to withstand being an unconvicted felon? That is the depth of these relationships. This is not just about sex. This is what needs to be constitutionally recognised. This is the business of life. And it’s not just about sexual acts.”

Menaka Guruswamy, advocate against Section 377

What Were the SC's Options?

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.

“We don’t settle constitutional issues by referendum. We don’t follow majoritarian morality, but follow constitutional morality.”  

CJI Dipak Misra

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 whole object of fundamental rights is to give court power to strike down laws which a majoritarian government, swung by votes, will not repeal. We don’t wait for majoritarian governments to repeal laws. If a law is unconstitutional, it is the duty of the court to strike it down.”

Justice Rohinton Nariman

The Possibilities

There were two options before the apex court:

1. Strike down Section 377 entirely and remove it from the IPC;
2. Read down Section 377 so that it does not criminalise sexual acts between consenting adults.

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.