Decriminalization of Section 377

Disha Agarwal | ICFAI Hyderabad | 13th June 2020 

Decriminalization of Section 377:

Section 377 of IPC was embedded deep within the roots of Indian legacy until 2018. The brutality of this section has been felt by the oppressed for decades. Decriminalization of Section 377 has marked end to an era of discrimination, oppression and has paved a new life for people with different sexual orientation and gender identity.

Brief History of Section 377:

Chronological legal events that took place to decriminalize Section 377 dates back to 1991, wherein an organization AIDS BHEDBHAV VIRODHI ANDOLAN (ABVA), put forth the violence, discrimination faced by gay people and called for repealing the legislation that causes havoc in the society for people with different sexual orientation and gender identity. Subsequently, they failed in their attempt. In 1994, an official attempt was made by ABVA by filing a writ petition for repealing Section 377, but the same was rejected.

In 2001, Naz Foundation wherein an NGO working for the rights of LGBTQ community filed a PIL before Delhi High Court seeking legislation of consensual gay sex and challenged the constitutionality of Section 377 under Article 14, 15 and 19. Subsequently, Delhi High Court dismissed the PIL, thereafter a review petition was filed which was also rejected, later the NGO approached the Apex Court. Apex Court directed HC to reconsider the matter and reinstated the HC in charge of it. In 2009, High Court passed a landmark judgment striking Section 377 and holding it unconstitutional w.r.t Article 14, 15, 19 and 21.  Various appeals were filed challenging High Court’s authority to change the law. In 2013, Supreme Court overruled the decision and held that “Section 377 does not suffer from the vice of unconstitutionality”. Section 377 was reinstated stating that only Parliament has the authority to amend the law and not the High Court.

Scrapping Section 377: Navtej Singh Johar v Union of India:

In 2013, five petitions from the LGBTQ community were filed challenging the constitutional validity of Section 377 on the basis that it violates Article 14, 15, 19 and 21 of the Constitution. Section 377 violates Article 14 on two basis, it creates an arbitrary distinction between consensual and non-consensual sexual acts of adults. Secondly, it also creates unreasonable distinction between penile-vaginal and penile-non-vaginal sexual acts supported by the justification of the importance of procreation in India, therefore violating equal protection doctrine enshrined in Article 14. It is also to be noted that there exists lacuna on the part of law in giving a clear interpretation regarding terms such as carnal intercourse, order of nature.[1]  Article 15 cannot be read restrictive to gender- male, female, it also includes “sexual orientation”[2]. With the historic and laudable decision in “KS Puttaswamy and Anr. v. Union of India & Ors”[3], the court emphasized that sexual orientation is an essential attribute of one’s privacy and has to be protected under constitution. This decision further paved way to constitutionally recognize sexual orientation. It is clear that discrimination on the ground of sex is inclusive of discrimination on the basis of sexual orientation. Therefore, it can be fairly concluded that Section 377 violates Article 15(1) as it fails to encompass the word sexual orientation in the term sex and discrimination is made on the grounds of sexual orientation.

Section 377 violates Article 19(1)(a) of the Constitution which protects the fundamental right of freedom of speech and expression granted to each and every citizen yet it was curtailed for  LGBTQ community. Despite various judgments being delivered recognizing right to choose a sexual partner is a fundamental right yet it was overlooked for as many as 150 years through Section 377. Every citizen of this country including the LGBTQ community has right to choose a sexual/romantic partner, express their romantic/sexual desire through any means. In simpler words they have right to express their sexual orientation and gender identity. The Constitution of India states that Article 19(1) can be curtailed only through certain exceptions such as public decency, morality etc. Public decency and morality cannot be exaggerated beyond a rational limit and cannot suffice reasonable grounds so as to curtail their freedom of speech and expression under article 19(2). Consensual sexual intercourse among adults, be it homosexual or heterosexual, in private space, in no way harms public decency or morality.

Section 377 violates Article 21 as it is violates one’s personal liberty, privacy and dignity. A stepping stone in this case was the historic judgment in KS Puttaswamy and Anr. v. Union of India & Ors.[4] wherein it was held that “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution”. It was also held that sexual orientation is an essential attribute of privacy which paved way for decriminalizing Section 377. One of the interesting theories discussed in this case was Doctrine of Non- Retrogression. According to which, the rights once recognized by the court of law cannot be taken back. In simpler terms, Courts recognized the rights of third gender in Naz Foundation[5] case in 2009 and reversed it in Suresh Koushal[6] case in 2013 which was wrong because it took away a right already recognized. It implicitly also states that the rights granted through Navtej Singh Johar cannot be taken back in the future. By applying the principle of Non-Retrogression, Navtej Singh Johar v UOI cannot be reversed.

The harm of Section 377 was not that it just prohibited rights of certain gender to express their intimate beliefs but it also fostered stereotypical morality about the gay community which had far devastating effect. It perpetuated negative, discriminatory beliefs towards same-sex relations and gay people were viewed differently. The fear of homophobia was so deepened that it fostered persecution, torture, ill treatment of the gay community throughout the country. Supreme Court has asserted democracy by decriminalizing Section 377 and getting rid of 150 year old archaic-colonial law and thereby making a progressive step towards change. However, in the backdrop it is seen that the appalling incidents of violence, harassment have escalated since the scrapping of Section 377. Therefore, without an attitudinal psychological change towards the gay community, emancipation and equality for the LGBTQ community will still remain a distant dream. Anticipating that scrapping of Section 377 will propel acceptance for the gay community and will further foster equality among all irrespective of their genders.

[1]Navtej Singh Johar v. Union of India (2018) 1 SCC 791

[2]Toonen v. Australia, CCPR/C/WG/44/D/488/1992 ; Corbiere v. Canada (1999) 2 SCR 203.

[3]  (2017) 10 SCC 1 

[4] (2017) 10 SCC 1 

[5]  (2009) 111 DRJ 1

[6] (2014) 1 SCC 1