- The Supreme Court came to the rescue of the government when it came under attack for not contesting the challenge to Section 377 IPC, which criminalises homosexuality.
What is Section 377?
- Section 377 of the Indian Penal Code (IPC) of 1860, is a colonial era provision that criminalises private consensual sex between adults.
- It criminalises sexual activities against the order of nature, arguably including homosexual sexual activities.
- 2009 HC verdict: In 2009, Delhi High Court’s judgement decriminalizes Section 377. The High Court had read down Section 377 and declared that the penal provision targeted homosexuals as a class.
- 2013 SC verdict:
- 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).
- A Review Bench of the Supreme Court, in 2014, had agreed with the 2013 verdict refusing to strike down Section 377 IPC.
- Right to privacy verdict: In the unanimous verdict the 9-judge constitutional bench of Supreme Court declared right to privacy as part of right to life. In the judgement, the bench had analysed the logic in the 2013 judgement of Supreme Court 2-judges bench on Homosexuality.
- Current hearing by SC: The five-judge constitutional bench of Supreme Court started hearing of petitions challenging the constitutionality of Section 377 of the Indian Penal Code.
U-turn by center:
- The government was accused of taking a U-turn before the five-judge Bench, led by Chief Justice of India DipakMisra, examining the legality of Section 377 IPC.
- In 2009, the Centre said that the High Court had imposed extraordinary moral values on the society by de-criminalising homosexuality in 2009. And the Centre had never contested the High Court verdict by filing an appeal in the Supreme Court.
- While government filed a review petition against the December 2013 judgment of the Supreme Court and made the penal provision to exempt consensual acts between adults from the purview of the Section.
- In present hearing, 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. Thus the Centre not taking a firm stance to the challenge to the Section 377.
- The court reasoned that a subsequent development in the form of a nine-judge Bench upholding privacy as a fundamental right in 2017, may have prompted the Centre to leave the fate of the colonial provision entirely in the hands of the apex court.
Other points of discussion:
- Question before court: Chief Justice Misra addressed the courtroom, saying “Let the Bar understand this. The issue raised here is of choice. They (petitioners) are saying ‘I have a choice. The court has conferred privacy on me. My sexual orientation comes with dignity and privacy. Now there is this one provision which annihilates my privacy and dignity. Is this not an interference on my constitutional rights?
- Public opinion:
- Many lawyer argued that the court should gauge public opinion. Even after 60 years, Parliament has not thought to delete Section 377. Three Bills were moved in Parliament to strike off Section 377 from the penal code. All were defeated.
- To this, Chief Justice said, “We do not follow majoritarian morality but constitutional morality.”
- Reference to literature:
- Many argue that the some of the literature on Section 377 presented to the court by the petitioners were written by persons of a “particular orientation” who view the issue only through their prism.
- On this one judge said that public ‘orientation’ changed with insight and new development.