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Landmark verdict by a Constitution Bench reverses an earlier judgment of the Supreme Court which had set aside the 2009 Delhi High Court decision to decriminalize gay sex

Five years after its decision to restore the constitutional validity of Section 377 of the Indian Penal Code attracted global criticism, the Supreme Court, on Thursday (September 6), made a course correction by decriminalizing consensual homosexual sex.

The landmark verdict by a Constitution Bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra restores a historic judgment delivered by the Delhi High Court in 2009 which had first decriminalized gay sex. While the Delhi High Court verdict had come on a petition filed by NGO Naz Foundation, the Supreme Court’s extant verdict is on a bunch of petitions that were filed afresh to challenge the constitutional validity of Section 377. The apex court had, in fact, made it clear during the course of the proceedings in the case that it was not adjudicating on curative petitions but on the set of fresh writ petitions on the subject.

A five-judge Constitution bench, comprising Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra struck down Section 377 of the Indian Penal Code on Thursday
A five-judge Constitution bench, comprising Chief Justice Dipak Misra, Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra struck down Section 377 of the Indian Penal Code on Thursday

Chief Justice Dipak Misra began the pronouncement stating that it was a unanimous verdict and that four of the five judges (Justice Khanwilkar being the exception) on the Constitution Bench had all written concurring judgments. The Chief Justice added: “Prejudice and social stigma still affect a certain section of the society. Progressive and inclusive realisation must embrace all”.  He then pronounced that Section 377 is “arbitrary” and added: “the LGBT community possesses rights like others; majoritarian views and popular morality cannot dictate constitutional rights”.

Section 377: A Bumpy Ride

1861 — Section 377 was introduced in the British India which was modelled on the Buggery Act of 1533, and was drafted by Lord Macaulay in 1838 and was brought into effect in 1860. This criminalized anal penetration, bestiality and homosexuality in a broader sense.

2001 — In the year 2001, an NGO Naz Foundation filed a petition in the Delhi High Court challenging the constitutional validity of Section 377. The NGO filed the lawsuit so that homosexual relations between two consenting adults be allowed.

2003 — The Delhi High Court dismissed the Naz Foundation petition following which Naz Foundation moved the apex court seeking directions to the Delhi High Court to reconsider its decision

2009 — The Delhi High Court gave a landmark decision and decriminalized homosexuality among consenting adults, holding it to be in violation of fundamental rights covered under Articles 14, 15 and 21 of the Constitution of India.

2012 — Various appeals were made to the Supreme Court challenging the Delhi High Court’s decision and also challenging its authority to change the law. In December 2012, the Supreme Court overturned the Delhi High Court’s decision after finding it legally unsustainable. The Supreme Court then recommended that the Parliament address the matter because only they had the power to amend the existing laws.

2016 — Five petitions were filed by LGBTQ activists S Johar, Sunil Mehra, Ritu Dalmia, Amar Nath and Ayesha Kapur. In the plea, the activists said “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”

2018 — A five judge constitutional bench, led by Chief Justice Dipak Misra and comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, began hearing the petitions challenging Section 377 in July.

—Compiled by Deepankar Malviya

The verdict by the Supreme Court, however, not only restores the Delhi High Court verdict that was authored by its then Chief Justice, Justice AP Shah, but also fortifies it further in light of at least two other judicial milestones that the apex court had crossed since 2009 – first, its 2014 verdict that granted transgenders the status of third gender and gave them rights to seek remedy for any discrimination arising out of their sexual orientation (the NALSA judgment) and second, the 2017 judgment of making privacy a fundamental right.

Dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and mediaperson Sunil Mehra convinced the Supreme Court to revisit its 2013 judgment outlawing gay sex
Dancer Navtej Singh Johar, restaurateurs Ritu Dalmia and Ayesha Kapur, hotelier Aman Nath and mediaperson Sunil Mehra convinced the Supreme Court to revisit its 2013 judgment outlawing gay sex

The Constitution Bench ruled on a petition filed by five eminent personalities – dancer Navtej Singh Johar, journalist Sunil Mehra, hoteliers Ritua Dalmia and Aman Nath and businesswoman Ayesha Kapur.

“Section 377 IPC, so far as it penalizes any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or 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 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 two individuals without the consent of any one of them would invite penal liability under Section 377 IPC,” Chief Justice Misra said in the verdict authored by him. A similar position was taken by the other members of the Constitution Bench.

The bench had reserved its verdict on the petition on July 17 after submissions by various stakeholders had concluded. However, through the course of the proceedings in the case, ample indications were given by the bench on the direction in which it was veering. The LGBTQ (Lesbian, Gay, Bisexual, Transgender and Queer) community, which stands to gain the most from this verdict, had been upbeat about a positive outcome from the petition owing to statements made by the bench during arguments in the case. For instance, on July 12, days before the bench reserved its verdict; Justice Indu Malhotra had declared during the proceedings that homosexuality “is not an aberration but a variation”. Similar averments were made by other judges on the bench, including Chief Justice Dipak Misra, during the long winding arguments in the case.

Read the full verdict here: 

https://www.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf

— India Legal Bureau

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