The Supreme Court on Thursday, September 6, pronounced the historic Section 377 verdict. After hearing a number of petitions challenging Section 377 of the IPC, which criminalises homosexuality, the Supreme Court delivered the verdict in the case. The five-judge bench was headed by Chief Justice of India Dipak Misra and comprising Justices Fali Nariman, A M Khanwilkar, D Y Chandrachud, and Indu Malhotra. The verdict today comes on five petitions moved by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur. The judgment is the first in the series of the ten important judgments that the Chief Justice of India will be a part of before his retirement on October 2.
If you are wondering why the case is in the Supreme Court now? What has happened so far and what is the apex court likely to do? Read on to know.
When and who filed the first petition against Section 377?
The first petition to get rid of Section 377 was filed in the Delhi Court in 2009 by Naz Foundation, an NGO that works for LGBTQ rights. It stated that the section violates the fundamental rights of the LGBTQ community. The NGO filed the petition before a two-judge panel. In July 2009, in a landmark judgement, Justice Shah, and Justice S Muralidhar struck down Section 377 of the IPC states that it violates Articles 14, 15 and 21 of the Indian Constitution. The High Court further clarified that the section will be invoked in cases of non-consensual sex and sex with a minor.
Timeline of the events
1861: This is the year when Section 377 was introduced by the British Raj. The section was drafted in 1838 by Thomas Macaulay and was brought into effect in 1860. It was modelled on the Buggery Act of 1533 and it states ‘buggery’ is an unnatural sex act which goes against nature, God and man’s will. The act criminalises anal penetration, bestiality, and homosexuality.
1994: AIDS Bhedbhav Virodhi Andolan (ABVA) files the first petition in the Delhi High Court against Section 377 challenging the constitutionality, in order to challenge prison authorities’ ban on condom distribution.
1998: The movie ‘Fire’ directed by Deepa Mehta, starring Shabana Azmi and Nandita Das, depicts a lesbian relationship. After the release of the film, certain organisations staged protests forcing cinemas to stop screening the movie.
2001: Naz Foundation, an NGO which works on HIV/AIDS and sexual health issues, challenged the constitutionality of Section 377 before the Delhi High Court.
2004: The Delhi High Court dismisses the PIL.
2006: The Supreme Court directs Delhi High Court to hear the case.
2009: In a landmark judgement, the Delhi High Court described Section 377 as a violation of the fundamental rights guaranteed by the Constitution of India. Following the judgement, several religious groups moved the apex court for a direction against the verdict.
2013: The Supreme Court sets aside the 2009 verdict. It further said that it was the duty of parliament to decide on scrapping laws. Global Day of Rage demonstrations was organised in over 30 cities to protest against Section 377.
2016: The Supreme Court refers curative pleas on homosexuality to a five-judge bench.
2017: The Supreme Court declares the right to privacy a fundamental right under the constitution.
2018: The Supreme Court reconsiders its 2013 decision. On July 10, a five bench Constitutional bench led by Justice Dipak Misra and comprising of Justice R F Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra, begins hearing petitions challenging Section 377.
On September 6, the Supreme Court delivers final judgement on the legality. LGBT Community has same rights as of any ordinary citizen. Respect for each other’s rights and others are supreme humanity. Criminalising gay sex is irrational and indefensible, observes CJI Dipak Misra.
Section 377 violates these fundamental rights claims petitioners:
Article 14 – Right to equality
Section 377 violates the obligation on the state to ensure equal opportunities for vulnerable sections of the society.
Article 15 – Prohibition of Discrimination
The section reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Section 377 unlawfully discriminates against the LGBTQ community on the basis of sex.
Article 21 – Right to Life and Personal Liberty
Article 21 reads, ‘No person shall be deprived of his life or personal liberty except according to a procedure established by law’. Section 377 of the IPC criminalises ‘unnatural’ sexual acts such as anal sex.
Article 19 (1)(a) – Freedom of Expression
Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behaviour or any other form. The criminalisation of Section 377 will have a chilling effect on the members of the LGBTQ community as it will restrict them from expressing them fully.
Shashi Tharoor unsuccessful efforts to amend Section 377
Congress Leader Shashi Tharoor has always been vocal when it comes to the rights of the LGBTQ community. He has often spoked and proposed amendments to the government’s bill to repeal 104 redundant laws. Earlier, he had moved a private member’s bill to repeal Section 377 but the ruling BJP party used its majority to defeat Tharoor’s attempt.
Centre’s stance on the case
While the ruling Bharatiya Janata Party (BJP) has not taken any official stand on Section 377, there have been utterances from Arun Jaitley and Union Health Minister Harsh Vardhan. In February 2017, in support of abolishing Section 377, Jaitley said, “Supreme Court should not have reversed the Delhi High Court order which de-criminalised consensual sex between gay adults”. While in 2014, the then Union Health Minister Harsh Vardhan said, “Everybody has human rights. It is the job of the Government to protect them”.
In December 2013, in support of Section 377, BJP President Rajnath Singh was quoted saying, “We will state that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported”.
On July 10, according to ANI reports, BJP MP Subramanian Swamy said being homosexual is not normal and is against Hindutva and needs medical research to find out if it can be cured. In 2015, Swamy had called homosexuality a ‘genetic flaw’.