Section 377: Historical wrong needs correction

Gay Pride rally by Vijay Pandey (22)In the wake of the landmark ruling of the nine-judge bench of the Supreme Court elevating the ‘right to privacy’ to the level of fundamental rights, Section 377 of the Indian Penal Code, a progeny of the colonial-era Buggery Act of 1533, appears set for a total revamp. The impugned provision which criminalizes sexual activities which are “against the order of nature” is on the radar of the apex court. The judicial initiative has pumped in buoyancy among the lesbian, gay, bisexual, transgender and queer (LGBTQ) communities known for practising their own sexual preferences.

How the Supreme Court erred
With an epoch-making judgement delivered in July 2009, the Delhi High Court removed Section 377 from the statute book which was, however, ultimately reversed by the SC on December 11 2013, declaring that amending or repealing the IPC provision should be a matter better left to the wisdom of Parliament.

While adjudicating Suresh Kumar Koushal versus NAZ Foundation, the SC bench of Justices GS Singhvi and SJ Mukhopadhaya intriguingly not only validated the British-era provision but also inverted the 2009 verdict which had held Section 377 violative of Articles 14, 15 and 21 of the Constitution. A review against the 2013 decision was also dismissed and a curative petition moved thereafter is still pending in the Supreme Court.

Protector of rights
On August 24 last year, the SC while inventing the ‘right to privacy’ as yet another fundamental right also agreed to revisit its 2013 order which not only revived Section 377 but also re-criminalized gay sexual relations. Accordingly, the three-member bench headed by then Chief Justice of India T.S. Thakur issued notice to the Centre seeking its response to a writ petition filed by five members of the LGBTQ communities that had accused the police of perpetual stalking.

Taking the matter still further, last month, a three-judge bench of current Chief Justice of India Dipak Misra and Justices AM Khanwilkar and DY Chandrachud referred a bunch of eight curative petitions to a five-member constitution bench, seeking to decriminalise consensual sex among LGBTQ adults. It observed that the 2013 judgment appears to have impaired the sexual preferences of individuals. It also took cognizance of the ratio decidendi of another judgment according the right to privacy the status of a fundamental right, seemingly reflecting the freedom of sexual orientation.

After the SC’s privacy judgment, activists and lawyers working for LGBTQ communities prepared a robust case for safeguarding the rights of sexual minorities. Noted activist Gautam Bhan said SC’s appraisal of the right to privacy as an offshoot of dignity and equality, particularly in the case of LGBTQ rights, was a step forward. “It reaffirms the Delhi High Court judgment about reflective sexuality within the framework of constitutionality,” commented Prashant Yadav, a senior criminal lawyer.

Breaking the colonial shackles
In 2013, when the SC reversed the Delhi HC’s 2009 verdict, it held that the 153-year-old IPC provision criminalizing gay sex “… does not suffer from the vice of unconstitutionality”. Section 377 enacted by the British in 1860 terms consensual anal sex an “unnatural offence” and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not “against the order of nature”.

Suprem Court by Shailendra (14)A three-judge bench headed by CJI Dipak Misra observed that “… taking all aspects in a cumulative manner, we are of the view that the decision in Suresh Kumar Koushal’s case requires reconsideration”, and accordingly referred the matter to a larger bench to be constituted by the CJI. The bench further noted that “…a section of people or individuals who exercise their choice should never remain in a state of fear…” since the societal morality keeps on changing from age to age.

The order to review the 2013 ruling came on a 2016 petition filed by Navtej Singh Johar, a Bharatnatyam dancer honoured with the Sangeet Natak Akademi award, journalist Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath of the Neemrana chain, and Ayesha Kapur, a psychology graduate. “What is natural to one may not be natural to the other. But the said natural and sexual orientation and choice cannot be allowed to cross boundaries of law but confines of law cannot trample or curtail the inherent right embedded in an individual under Article 21 of Constitution either,” held the judges.

A way forward

On the phraseology of section 377 which criminalises “carnal intercourse against the order of nature”, the bench said “… determination of the order of nature is not a constant phenomenon. Societal morality changes from age to age.” Besides, Section 377 also punishes sexual intercourse with animals. But the SC made it clear that it will not go into that aspect after the petitioners submitted that they were also not pressing this. The petitioners contended that section 377 “… infringes their right to sexuality and also has a cascading effect of barring the petitioners from accessing the unremunerated rights which are held flowing from Article 21 of the Constitution of India.”

The petitioners further emphasized that “… the ability to be open with one’s friends, family, colleagues and employees about an integral and intrinsic part of one’s life and personality, is fundamental to unfolding the full potential of the personality of any human being. Being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness.”

The unanimous ruling of the nine-judge bench contained strong words pertaining to the 2013 verdict of the apex court which had upturned the Delhi High Court’s niche-carving judgment. “Privacy includes at its core the preservation of personal intimacies… and sexual orientation,” the court said.

The apex court’s 2013 verdict was obviously retrograde because it resurrected an obsolete provision that breathed on Victorian notions of morality. It failed to appreciate that even the Buggery Act of 1533 from which Section 377 was culled had itself been repealed way back in 1828. Strangely, it also held there was no need to capsize Section 377 in view of there being only “a minuscule fraction” of homosexuals in India.

While re-criminalising homosexuality, the SC clearly shredded the constitutional jurisprudence on freedom of expression and set the clock backward. Interestingly, the two-judge bench merely washed its hands off while passing the buck to the Parliament to take a call on the issue. But the privacy verdict has, however, accorded yet another opportunity to the judiciary to reclaim its role as the ultimate custodian of the rights of the vulnerable individuals even if they numerically constituted a “miniscule fraction”.