The Supreme Court on Tuesday reserved its verdict on the contentious Section 377 of the Indian Penal Code, which criminalises 'unnatural sex', even if it is between two consenting adults.
Chief Justice of India Dipak Misra reconstituted a Constitution bench recently to hear the arguments against this law. The five-judge bench comprised Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, apart from the CJI.
During the hearing on Tuesday, Justice Rohinton Nariman remarked: “The moment we are convinced there is a violation of fundamental rights, we will strike it down and not leave it to the legislature.”
Last week, the apex court began hearing arguments on a batch of petitions demanding that this law be scrapped. The petitioners included the NGO Naz Foundation, parents of queer people and a collective of human rights groups under the umbrella Voices against 377.
What the court observed
The Centre had earlier requested for time from the SC to file its reply. However, the apex court rejected this and said that it would give its reply in the course of its hearing.
Section 377 criminalises anal and oral sex and claims that it goes against ‘the order of nature with any man, woman or animal’. The maximum punishment under this law is life imprisonment.
What is Section 377
Section 377 was first introduced in India in the 1800s. Apart from bestiality, it criminalises any sexual act between people of any gender that isn’t heterosexual penile-vaginal sex. Therefore, even consensual same-sex relations between two adults is deemed criminal.
In 2001, Naz Foundation challenged this law in the Delhi High Court, along with the collective Voices Against 377. After 8 long years, the HC delivered a landmark judgement, where it declared that the law would exclude sexual acts between two consenting adults, no matter their gender or sexual orientation.
In its verdict, the High Court declared that Section 377 went against Article 21 of the Constitution, which guarantees the basic right to privacy to all individuals.
However, several organisations - political and religious - filed petitions in the Supreme Court claiming that reading 377 to exclude sexual acts ran afoul of the institution of marriage and that the right to privacy did not include the right to commit a criminal act.
In a step that took the country back several decades, if not centuries, the SC in 2013 overturned the Delhi HC judgement. It held that only the Parliament could only decriminalise homosexuality, not a court.
Despite several curative petitions being filed subsequently, the court never listed it for hearing until now.
Why is it unconstitutional?
Section 377 directly goes against Article 21 of the Constitution, which guarantees a right to life and liberty for all individuals. This includes the right to dignity, privacy and autonomy. In 2017, in a major verdict, the Supreme Court ruled that the right to privacy is a fundamental right and sexual orientation, the court said, is ‘an essential component of identity’ and that the rights of queer people are ‘founded on Constitutional doctrine’.
It also said that the section was in contravention to Articles 14 and 15, which guarantee equality and prohibit discrimination.