Sec 377 hearing in Supreme Court: Long battle for individual freedom, mainstream discussion nears conclusion

A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India Dipak Misra will pronounce on Thursday the verdict on a batch of petitions seeking decriminalisation of Section 377 of the Indian Penal Code, 1861.

Section 377 of the IPC states that, “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.” This archaic British law dates back to the colonial era and all eyes will be on the Supreme Court of India as it is expected to overturn it in a landmark judgement.

The Constitution Bench had reserved its verdict on 17 July after hearing all stakeholders, including gay rights activists, for four days, in a marathon court hearing where. During this, the majority of the nine-judges held that the right to privacy cannot be denied, even if there is a minuscule fraction of the population which is being affected, and that “the majoritarian concept does not apply to Constitutional rights”. “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion," it noted.

 Sec 377 hearing in Supreme Court: Long battle for individual freedom, mainstream discussion nears conclusion

Representational image. Getty Images

Tackling the argument on the minuscule number of prosecutions under Section 377, the bench said that, “The invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment.” It further noted that prosecution of a few is not an index of violation, is “flawed, and cannot be accepted” and thus LGBTQ rights activist and social workers are looking forward to a overruling of the law from the apex court on Thursday.

However, in this context, it is important to look back onto the struggle of petitioners and consistent effort of lawyers which has led us to this day. The whole debate around homosexuality and the law criminalising it was first stirred when in 1994, a group named AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition in the Delhi High Court against Section 377  in order to challenge prison authorities’ ban on condom distribution to male inmates. Following this, in 1998, when Deepa Mehta's film Fire was released, it created a furore for its open depiction of a lesbian relationship.

However, none of these cases were followed up in the court and thus the fight lost its steam. But, in December 2001, an NGO by the name of 'Naz Foundation' filed the first major case against Section 377 (Naz Foundation vs Govt of NCT of Delhi & Ors). This became the start of a string of petitions being filed for striking down of the archaic law.

However, a two-judge Bench of the Delhi High Court headed by Chief Justice BC Patel and Justice Badar Durrez Ahmed dismissed the case in 2004, terming it as a mere "academic challenge to the constitutionality of a legislative provision". A review petition too, was dismissed. And it was only in 2006, that the Supreme Court directed the Delhi High Court to hear the case.

And what followed was a landmark decision on 2 July, 2009, in which the high court decriminalised Section 377, ruling that consenting intercourse between two adults was not illegal. A division bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said: “We declare that Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. However, the court ruled, “the provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”. (Naz Foundation vs Govt of NCT of Delhi & Ors, 2009). This decision was celebrated widely across the nation by gay rights activists who finally felt that their 'minority' voice has been heard.

However, the cheer was short lived as the verdict was challenged by Suresh Kumar Koushal, an astrologer and journalist, along with 15 others, in the Supreme Court on 9 July 2009 and on 11 December 2013, a two-judge Supreme Court Bench comprising of Justice GS Singhvi and Justice SJ Mukhopadhaya upheld the appeal, recriminalising gay sex. They ruled that, IPC 377 "does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable." The Bench left it to Parliament to “consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”, if it so wished.

Therefore, after the Narendra Modi government came into power in 2014, the activists hoped for the issue to be actively taken up in the Parliament and subsequently in the court. A year later in 2015, the Lok Sabha voted against introduction of a private member’s bill to decriminalise homosexuality which was proposed by Congress MP Shashi Tharoor. However, the UPA government had earlier filed a review petition in the case in December 2013 which was quashed by the Supreme Court in 2014. Even the Naz Foundation and many others had filed PILs seeking a review into the court's decision, but all the petitions were set aside in 2014 and the court in February 2016 referred a curative plea to a five-judge Bench.

However, in 2014, in what has came to be known as the NALSA judgment, the SC did accord the transgender community the right to be called the 'third gender' and thus seek legal, political and economic rights, and remedy against discrimination. This was also when the Nation Crime Records Bureau, for the first time, started collecting data or publishing records for crimes under Sec 377.

In 2014 itself, a group of LGBTQ activists including celebrated dancer Navtej Singh Johar filed petitions against Section 377. Navtej has been a vocal voice for gay rights, having come out of the closet himself. In 2016, Johar’s petition was forwarded to a Constitution Bench of the SC for hearing.

The trigger for his writ petition, popularly known as Navtej Johar versus the Union of India case, was the SC ruling of 2013 that dismissed the issue as concerns of a “minuscule fraction of the country’s population”, he told The Indian Express. Apart from Navtej, petitions by chef Ritu Dalmia and hotelier Keshav Suri, journalist Sunil Mehra, hotelier Aman Nath, business executive Ayesha Kapur and S Johar were also filed alongside.

A collective of 16 academics have also filed a plea alongside the primary petitioners and two petitions were filed by activist Ashok Row Kavi and the Hamsafar Trust. A group of former and present students of various Indian Institutes of Technology (IIT) also asked to be impleaded and most recently, 20 LGBTQIA activists from across the country filed a collective petition as well. Hence, in 2018, as the petitions mounted, Johar’s petition was assigned to a five-judge Constitution Bench which comprises of Justices Rohinton Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra along with the CJI.

The current law violates Article 14 of the Constitution, which guarantees all people "equality before the law;" Article 15, which prohibits discrimination "on grounds of religion, race, caste, sex or place of birth;" and Article 21, which guarantees "protection of life and personal liberty." The law also stand in violation to the Right to Privacy which was declared as a fundamental right by the Supreme Court in August 2017.

Amritananda Chakravorty, who is representing the group of academicians, told Huffington Post that the Supreme Court on Thursday will look at Section 377 afresh in the light of the 2017 judgement, which stated that, "right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution". The lawyers are also going to bring in the March 2018 Hadia case judgement by the court which asserted the right of adults to choose their partners without interference from the government, parents or anybody else and thus, this ruling will have implications on the legitimacy of a lot of other conservative notions of the society and various rights of an individual.

Therefore, as the Supreme Court hears the fresh petitions on Thursday, many in the LGBTQ community are hoping that the 156 year-old legal battle which has played a crucial role in making sexuality, a subject of open, and mainstream conversation across India, will be concluded with a final acceptance by the law.

Follow LIVE updates on the SC verdict on Sec 377 here

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Updated Date: Sep 06, 2018 09:47:23 IST