By Abhiudaya Verma, Research Associate, Policy

The legal fight in Singapore against Section 377A of Singapore Penal Code, which can be called a close counterpart of the Section 377 of the Indian Penal Code (IPC), is set to go further. On March 30th, 2020 the High Court of Singapore dismissed the plea to declare section 377A of Singapore Penal Code as unconstitutional. While upholding the law that criminalises homosexual activities between males in Singapore, the country’s Supreme Court judge also made few remarks in the Indian context saying ” I am unable to agree with the reasoning of the Indian Supreme Court given that the court appeared to have accepted a wider meaning of what constitutes “expression”, extending beyond verbal communication of ideas, opinions or beliefs”. The Indian Supreme Court on 6th September, 2018 ‘read down’ Section 377 of the IPC, making consensual sexual activity between adults no longer a criminal offence, regardless of sexual orientation and gender identity. For a country like India where public decency and morality plays a major role in deciding judgements, it was a fairly long and tough legal battle for arriving at this historic judgement. We have tried to trace the origins and the path that this legal battle took against Section 377 by enlisting a brief  history of its legal journey.

AIDS Bhedbhav Virodhi Andolan vs Union of India

Objecting to the Status Quo 

The first petition against Section 377 can be traced back to May, 1994 filed in the Delhi High Court (HC) by an NGO called AIDS Bhedbhav Virodhi Andolan (ABVA). The petition was the result of the incident that occured in Tihar jail when Kiran Bedi, the then Superintendent of Tihar Jail, refused to provide condoms for inmates on grounds that it would encourage homosexuality and that was against Section 377. ABVA filed a writ petition in Delhi HC in response asking to declare Section 377 as unconstitutional and to provide free condoms in jails. However, this fight came to an end in 2001 when ABVA could not follow through with the petition in court and the petition was eventually dismissed.

Naz Foundation vs Govt of NCT of Delhi & Others

Raising the Bar: From Questions to Rights

In December 2001, Naz Foundation, a Delhi-based NGO, working on HIV-AIDS issues, filed a Public Interest Litigation (PIL) in Delhi High Court, challenging the constitutionality of Section 377 and calling for the legalisation of homosexuality. The Indian government responded to the Naz petition in 2003. It said that  “while the right to respect for private and family life is undisputed, interference by public authority in the interest of public safety and protection of health and morals is equally permissible – this is precisely what Section 377 does”, understating and ignoring the ambit and misuse respectively of the section. The government said that Section 377 is applied in cases of assault where bodily harm is intended and is used in India to punish sexual abuse of children and to complement lacunae in the rape laws and that the deletion of the said section “…can well open the floodgates of delinquent behaviour and be misconstrued as providing unbridled license for the same”. The government was of the opinion that the law does not run separately from the society and said “Objectively speaking, there is no such tolerance to the practice of homosexuality/lesbianism in Indian society”. This response by the government depicted the dichotomy of the Indian State at that time when it also ran various HIV/AIDS control programs and established organisations like National AIDS Control Organisation (NACO)  and on the other hand it also felt that Section 377 was necessary to uphold morality in the society.
The Delhi High Court took up the matter in September 2004 wherein a two-Judge Bench, consisting of Chief Justice B. C. Patel and Justice Badar Durrez Ahmed, dismissed the Naz petition. The grounds of dismissal were that there was no ‘cause of action’ in the petition as there was no prosecution pending against the Naz Foundation. The Court also said that the matter of constitutionality of the section was purely academic as the petitioners had not shown evidence of actual prosecutions under the law or cases where the law had been misused. In reality, the PIL represented the affected parties but since there was a stigma attached to homosexuality, the affected individuals were not able to file the petition directly. However, upon dismissal the Naz Foundation did not give up and filed a review petition stating that Section 377 of the IPC is renders the homosexual community in India, a disadvantaged group, since they cannot approach the court of law due to the stigma attached to homosexuality in law as well as the society. They are not able to report cases due to the constant harassment faced at the hands of the police. However, the High Court dismissed this review petition as well.

To counter the Delhi High Court’s dismissal of the petitions, on the above mentioned grounds, the Naz Foundation then filed a Special Leave Petition (SPL) in February 2006, before the Supreme Court on the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The Supreme Court upheld that the petition dealt with the issue that was being debated all over the world and hence it is in public interest and does not deal with an academic question. Thus, the Supreme Court dismissed the High Court’s reasoning and reinstated the case at the High Court. A series of affidavits and interventions were filed both in favour and against the Naz Foundation PIL. An affidavit was filed by NACO stating that the enforcement of 377 is a hindrance to HIV prevention efforts. Whereas, B.P. Singhal, the then Rajya Sabha MP, filed an intervention stating that homosexuality was against Indian culture and that the law should not be deleated or changed. Following a number of interventions the matter was heard in 2008 before Chief Justice A.P. Shah and Justice S. Muralidhar in the Delhi High Court. 

Naz Foundation vs Govt of NCT of Delhi and Others

Dismissing Notions to Recognise Rights: The 2009 Verdict

July 2nd, 2009 was a day of rejoice for the LGBTQ+ community in India and also for everyone in the world in its support. The Delhi High Court finally gave a verdict on the petition filed in 2001 by the Naz Foundation. The court declared that Section 377 criminalised consensual sexual acts of adults in private and thus it is voilative of Articles 21, 14 and 15 of the Indian Constitution. The rationale of the decision revolved around dignity, equality and privacy of a person. Along with this, the court also brought in the concept of ‘constitutional morality’ which is above religious morality, for India is a secular State. Section 377, though it technically criminalises conduct only, violates Article 14 on the basis that it unfairly targets homosexuals as a class. “The inevitable conclusion is that the discrimination caused to MSM (Men having Sex with Men) and gay community is unfair and unreasonable and, therefore, in breach of Article 14 of the Constitution of India.” said the court. Article 21 is violated by Section 377 as it criminalises acts taking place in private and further it criminalises individual choices which are central to personal dignity. The High Court relied on affidavits, FIRs, judgments and orders to illustrate the misuse of Section 377. 

Suresh Kumar Koushal and another versus NAZ Foundation and Others

An Oppressive Law or a Regressive Society? The 2013 Verdict

Filing the first Special Leave Petition (SLP) in the Supreme Court in 2009, Suresh Kumar Koushal, a Delhi-based astrologer challenged the Delhi High Court’s decision on Section 377. In a shocking turn of events for LGBTQ+ community and its supporters,  the Supreme Court reversed the judgment of the Delhi High Court and held that Section 377 does not violate the Constitution and is therefore valid. The Supreme Court said that there was not enough evidence to suggest that Section 377 violated the Constitution. The court said that the section does not discriminate against or target homosexual community as a class, as it also punishes heterosexual acts which fall under the scope of this section. The court went on to conclude that the responsibility to change laws lies with the Parliament and it should be left to the Parliament to consider deleting or changing the law. This decision shocked the people across LGBTQ+ spectrum and they felt betrayed by the Apex Court which followed a series of protests against the judgement. This led to Navtej Singh Johar, a well renowned award-winning Bharatnatyam dancer, filing a writ petition in the Supreme Court challenging Section 377 in 2016. 

‘Right to Privacy’ Judgement

Personal Choice & Matter of Rights

The Supreme Court in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors. 2017 declared right to privacy as a fundamental right under Article 21 of the Indian Constitution. 

While giving the judgement the Supreme Court also commented on sexual orientation being an essential attribute of privacy. The court said “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.” This argument of the court strengthened the case against Section 377 and in 2018 a five-judge bench led by Justice Deepak Misra started hearing the petition filed by Navtej Singh Johar and others against Section 377.

Navtej Johar & Ors. v Union of India

Progressive Laws to Cure Regressive Notions

September the 6th, 2018 was an euphoric and historic moment for the LGBTQ+ community in India and across the world. The five-judge Supreme Court bench reached the conclusion that Section 377 of the IPC violates Articles 14,19, and 21 of the Indian Constitution. “The judgment in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. is hereby overruled” were the concluding words of Justice Indu Malhotra, reinstating that consensual sexual activity between adults is no longer criminal, regardless of sexual orientation and gender identity. However, bestiality, non-consensual sexual activity and sex with minors will continue to be under the ambit of Section 377. The judgement was unanimous yet plural in the sense that the judges reached the same conclusion via different reasons.

The rationale behind the judgement was mostly similar to that of the 2009 Delhi High Court verdict. The court said that the right to life includes the right to sexual partner of choice which any couple (of the legal age regardless of marriage) can exercise in public and private. On similar lines, Justices Misra and Khanwilkar also opined that Article 21 protects a person’s right to a union but they promptly mentioned that the case was not about marriage. However, if we try to delve into the question of marriage of LGBTQ+ persons, this case has certainly laid the foundations for a strong argument in favour of same-sex marriage and many other rights including anti-discrimination provisions against LGBTQ+ people, parenting rights and so on. 

Ultimately, the jurisprudence around Section 377 along with the long legal battle of more than twenty years has led to a dignified sense of self and societal recognition for the gender and sexual minorities of our country. This recognition is important in civil society for receiving benefits from the State and having a collective political voice. The greatness of a nation can be judged by how it treats its most vulnerable citizens. The people of the LGBTQ+ community are one of the most vulnerable groups of citizens. They have long suffered discrimination and abuse for their personal choice of life and expression. The Supreme Court verdict has now empowered them to demand what they deserve for a better life of recognition, equality and respect. If the State’s policies in furtherance to this verdict can chart out a rights and equality based approach to all policies concerning the LGBTQ+ community, it will only be apt as we have legally and socially avoided and ostracized the community for a long time, in the name of “unnatural carnal intercourse”. Whereas, the worth of human beings even in the public policy domain, is much more than and of course never subject to, what their carnal preferences are. For an inclusive and truly democratic State, we will have to revisit many of our notions as to what connotes public and to what extent must the State facilitate the public’s “personal”, specially when that personal is questioned by the same State and denied or accepted in the name of better public policies.