RAINBOW AT THE END OF THE TUNNEL -PIVOTAL JUDGMENT BY SC ON SECTION 377

In the historic judgement, Supreme Court today scrapped the controversial Section 377 of Indian Penal Code, 1860, a 158-year-old colonial law on consensual homosexual sex. The Supreme Court reversed its own decision laid down on February 2016 and said Section 377 is irrational and arbitrary.

“377. 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 of either description for a term which may extend to ten years, and shall also be liable to fine.”

“LGBT Community has same rights as of any ordinary citizen. Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution. Criminalising gay sex is irrational and indefensible,” said Chief Justice Dipak Misra, who headed the five-judge bench of Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra and himself.

Over the years Section 377 has been very contentious and has been challenged in Supreme Court and High Court. In 2001 Naaz Foundation challenged 377 in Delhi High Court by filing a petition to allow homosexual relations between consenting adults. The historic judgement of decriminalising section 377, which decriminalise consensual sexual acts between adults was passed in 2009 by the then Chief Justice of High Court Ajit Prakash Shah and Justice S.Muralidhar. On December 11th, 2012 a panel of two Supreme Court judges overturned the decision that the High Court had given in 2009. The judgement stated that the power to amend the law was with the Parliament and not the High Court, thus their (High Court’s) judgement was outside the bounds of their jurisdiction. Thus, the Supreme Court recommended that the Parliament address the matter because only they had the power to amend the existing laws. In a 2013 judgment, the two-judge bench of justices G S Singhvi and S J Mukhopadhaya had argued that in 150 years, less than 200 persons had been prosecuted under Section 377. In January 2018, SC headed by CJI Dipak Mishra asked 2013 rulings to be reconsidered & sends it to a large bench.

In view of the judgement, it is declared that insofar as section 377 criminalises consensual sexual acts of adults, however clarified that such consent must be free consent, which is completely voluntary in nature and devoid of any duress or coercion.  The declaration of the aforesaid reading down of section 377 shall not, however, lead to the reopening of any concluded prosecution but can be relied upon in all pending matters whether they are at the trial, appellate or revision stages.  The provisions of section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality.

“The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India,” said Asmita Basu, Programmes Director, Amnesty International India. “The remarkable victory today is a milestone in the three decade old struggle by the LGBTI community and their allies in India,” she added.

Shashi Tharoor commented on the judgment “So pleased to learn that the Supreme Court has ruled against criminalising sexual acts in private. This decision vindicates my stand on Section 377 and on exactly the same grounds of privacy, dignity and constitutional freedoms. It shames those BJP MPs who vociferously opposed me in Lok Sabha”.

To build a truly democratic and plural India, we must collectively fight against laws and policies that abuse human rights and limit fundamental freedoms. This is why we, concerned Indian citizens and people of Indian origin, support the overturning of Section 377 of the Indian Penal Code, which punitively criminalizes romantic love and private, consensual sexual acts between adults of the same sex.

Activists had been fighting the ban since the 1990s, suffering several court reverses before the verdict today that sparked celebrations among lesbian, gay, bisexual and transgender groups across the country.

By- Ritika Goel
Student Reporter- INBA