Rohinton Mistrys’ Classic’s title feels appropriate to describe the judicial journey of Gay rights in India. The LGBT community in the country has long been at the receiving end of prejudice and hate because of their sexual preferences. Sadly the law has never been at their aid in this long and arduous struggle. The recent order of the Hon’ble Supreme Court in Navtej Singh Johar and Ors vs. Union of India (Navtej’s case) may be seen as the light at the end of the tunnel not just for the LGBT community but also for the rights movement in India in general.

The three judges bench in the Navtej’s case has decided to revisit it’s judgment in Suresh Kumar Koushal & Ors v. Naz Foundation & Ors (Suresh Kumar Koushal’s Case). The Hon’ble Supreme Court’s two judges bench speaking through Justice G. S. Singhvi had upheld the constitutional validity of Section 377 of IPC. The impugned Section criminalizes sexual intercourse between same sex individuals.

What is the purport of Section 377?

Section 377 criminalizes carnal intercourse against the order of the nature. The words used in the section 377 are whosoever voluntarily has sexual intercourse against the order of the nature. The word voluntarily is of a considerable importance as it makes consenting adults of same sex fall foul of the provisions of the Section. The offence is made punishable with life imprisonment or a minimum of 10 years of imprisonment.

 

What are the origin of the Section 377?

The law in India i.e. IPC, 1860 is over a century old and the section was drafted by Lord Macaulay, but the section traces its origins to the Buggery Act, 1533 which was enacted during the reigns of Kind Henry the VIII. The law defined “Buggery” as unnatural sexual act against the will of God and Man. In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act widened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, and also homosexuals.

Does the same law exists in the country of its origin?

Interestingly the country in which the law criminalizing same sex intercourse originated, has changed the law. The British parliament decriminalized it vide Sexual Offences Act, 1967.

How does it (Section 377) affect constitutional rights of LGBT community?

Section 377 has a very wide effect on the constitutional rights of the LGBT community. First and foremost, it is contrary to the right to life as enshrined in Article 21 of the Constitution. This can be understood as follows, a person from LGBT community suffering from AIDS is unwilling to go to hospitals for treatment of his infirmity because of fear of police that he/she will be persecuted by the Police and since Section 377 criminalizes same sex intercourse, this persecution would carry a statutory stamp.

Further, the Section 377 is antithetical to the concept of choice and freedom to express one self. The same is enshrined in Article 19 of the constitution. A person cannot and should not be persecuted for the choices he/she has made as to the life he/she wants to lead. In addition to the above as decided by the Hon’ble Supreme Court in former cases the life is not merely an animal existence but it is so much more.

The recent judgment of the Hon’ble Supreme Court in Right to Privacy case has further strengthened the view that Section 377 impinges upon the fundamental rights of the people of LGBT community.

How many have been the legal challenges made to Section 377? And what have been the consequences of those challenges?

• AIDS Bhedbhav Virodhi Andolan vs. Union of India: In this case Section 377 was challenged for the first time in the High court of Delhi. The repeal of the Section was prayed but the same was not pursued by the organization thus the petition was dismissed in the year 2001.
• Naz Foundation vs. of NCT of Delhi & Ors[1]: The case was filed in the year 2001 by Naz foundation an organization working for the rights of LGBT community. The Petition was dismissed by the Delhi High court, the review of the order was also not entertained. This lead to an SLP being filed against the said order. The Hon’ble Supreme Court held that the Petition was maintainable on the ground of Public Interest and the case was remanded back to the High Court of Delhi. The Hon’ble High Court of Delhi in a landmark judgment that was subsequently overruled held that 377 is unconstitutional in so far as it criminalizes consensual sexual intercourse between adults. The Hon’ble High Court found the Section 377 to be violative of Article 21, 14 and 15.
• Suresh Kumar Koushal & Anr vs. Naz Foundation & Ors[2]: The Judgment of Delhi High Court was challenged in the Supreme Court in which the court overruled the judgment of the Delhi High Court. The Court held that the provision was not unconstitutional and the onus to get rid of the same was left onto the parliament.
• Justice K. Puttaswamy (RETD) & Anr vs. Union of India[3]: The judgment in this case has provided impetus to the movement to decriminalize consensual sexual intercourse between individuals of same sex. The judgment popularly known was as the Privacy Judgment has held that “invasion of fundamental right is not rendered tolerable when a few, as opposed to a large number persons, are subjected to hostile treatment”.
• Navtej Singh Johar & Ors vs. Union of India[4]: The Supreme Court considered the submissions for the counsel and decided that the Koushal’s Judgment required reconsideration and has ordered the matter to be referred to a larger bench.

The latest order of the Supreme Court is correct in the light of progressive view taken by the court in recent cases concerning rights of marginalized communities in India. The Supreme Court in National Legal Services Authority vs. Union of India & Ors[5] had declared the transgender persons “Third Gender”. The judgment recognized an individual’s right to determine his gender whether he is a man, women or transgender.

By referring the matter to a larger bench the Supreme Court has given hope to a marginalized community. We can certainly hope that Supreme Court would do justice to the so called “miniscule minority”. The words of character Andrew Beckett in the movie Philadalphia (A movie about an individual wrongly dismissed from service because he was suffering from AIDS) come to mind “It’s that every now and again–not often, but occasionally–you get to be a part of justice being done. That really is quite a thrill when that happens.”

[1] 2010 Cri. LJ 94

[2] (2014) 1 SCC 1

[3] http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Judgement_24-Aug-2017.pdf

[4] http://supremecourtofindia.nic.in/supremecourt/2016/14961/14961_2016_Order_08-Jan-2018.pdf

[5] WP (Civil) 604 of 2013