Polity & Governance Prelims cum Mains

Choosing a partner is a person’s fundamental right’

The news:

  • The five-judge constitutional bench of Supreme Court has started hearing petitions challenging the constitutionality of Section 377 of the Indian Penal Code.


Section-377 and background of issue:

What is Section 377?

  • Section 377 of the Indian Penal Code (IPC) of 1860, is a colonial era provision that criminalises certain types of consensual sexual acts (“unnatural” acts) even in private between adults.
  • It states:
    • Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment for a term which may extend to ten years, and shall also be liable to fine.
    • Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
  • Thus it criminalises sexual activities “against the order of nature”, arguably including homosexual sexual activities.


Background: Courts’ judgment on Sec-377:

  • In 2009, Delhi High Court’s judgment decriminalized Section 377. The High Court had read down Section 377 and declared that the penal provision targeted homosexuals as a class.
  • Reversing the Delhi High Court’s verdict, in 2013, Supreme Court’s 2-judge bench, in the Suresh Kumar Koushal v NAZ foundation (the Naz case), had upheld validity of Section 377 (and thus again criminalizing homosexuality). This judgment dismissed the LGBT community as a negligible part of the population.
  • A Review Bench of the Supreme Court, in 2014, had agreed with the 2013 verdict refusing to strike down Section 377 IPC.
  • A curative petition was filed by NAZ foundation and also a writ petition filed by the LGBT community to refer the case to larger bench.


Right to privacy judgement (and observations on Section-377):

  • In the unanimous verdict the 9-judge constitutional bench of Supreme Court declared right to privacy as part of right to life. In the judgment, the bench had analyzed the logic in the 2013 judgment of Supreme Court 2-judges bench on Homosexuality.
  • Their observation are:
    • The 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.
    • Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.
    • Regarding negligible population, one of the judges observed that ‘a minuscule fraction of the country’s population constitutes LGBT is not a sustainable basis to deny the right to privacy. Hence the rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted.
    • The guarantee of constitutional rights does not depend upon their exercise being favorably regarded by majoritarian opinion.
  • Thus 2013 judgment of SC was in conflict with the LGBT community’s claim based on right to privacy, it noted.


SC’s stand on Sec-377 after Right to privacy judgment:

  • The supreme court agreed that the observations made by a nine-judge Bench in the right to privacy case upholding the right to sexual orientation and choice of sexual partners warranted a re-look into its dismissive verdict in the Naz case.
  • Thus it accepted the petition, and referred the case to a five-judge constitutional bench to adjudicate matters on Section-377 of IPC.
  • While accepting the case, the court noted that Section 377 punishes carnal intercourse against the order of nature, it added, “The determination of order of nature is not a common phenomenon. Individual autonomy and individual natural inclination cannot be atrophied unless the restrictions are determined as reasonable.”
  • The court observed that what is natural for one may not be natural for the other, but the confines of law cannot trample on or curtail the inherent rights embedded with an individual under Article 21 (right to life) of the Constitution.


News summary:

Supreme Court’s observation:

  • The Chief Justice, heading the five-judge constitutional bench which is re-visiting the December 2013 verdict of the Supreme Court in the Naz case, said the test was whether Section 377 stood in conformity with Articles 21 (right to life), 19 (right to liberty) and 14 (right to equality) of the Constitution.

Petitioners’ arguments:

  • They noted that the 172nd Law Commission Report had recommended deletion of Section 377. But nothing had been done all these years.

Government’s stand:

  • The government chose not to take a stand and rather leave it to the “wisdom of the Court” in so far as Section 377 criminalises gay sex between consenting adults.


The global experience:

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