What is section 377?

Section 377 of the Indian Penal Code came into force more than a century and a half ago, in 1861, when India was still being ruled by the British. It was modelled on Britain’s ‘Buggery Act’ of 1533, and criminalised “unnatural offences”. According to the act, “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.”

Although the Act did not explicitly specify “gay sex” or any other consensual intercourse involve those who are not heterosexual, it was based on the idea that anything other than normative heterosexual sex was “against the order of nature” and, therefore, criminal. Technically this covers forms of sex that are not considered “natural” for heterosexuals, like oral or anal sex, as well as all forms of intercourse between homosexuals.

What is the case about?

Although India gained independence from Britain in 1947, its criminal code continued to be based on the one that had been developed during the Raj, even though attitudes towards homosexuality in India have historically been very different to the Western belief that it is immoral. In 2001, a non-governmental organisation called the Naz Foundation approached the Delhi High Court demanding that homosexuality be decriminalised by striking down those portions or readings of Section 377 that made it illegal.

A landmark 2009 judgement from the Delhi High Court did just this, declaring Section 377 to be violative of fundamental rights guaranteed by the Constitution “insofar as it criminalised consensual sexual acts of adults in private”. But a number of other groups, primarily religious, objected to this order and moved the Supreme Court seeking the restoration of Section 377. In 2013, the Supreme Court overruled the Delhi High Court decision, saying essentially that it was for Parliament to take a call on the matter, rather than the courts.

Soon after, a curative petition saw the case being taken back to the Supreme Court, this time with a five-judge Constitution Bench, which on Thursday gave its verdict in the case.

What does the judgement say?

In four different but concurring opinions, the Supreme Court said that Section 377, as far as the aspect of criminalising consensual homosexual sex goes, runs contradictory to the Constitution. In consequence, the court has read down the provision and has declared all forms of consensual sex between competent adults to be legal. This consent, the court clarified, should be free consent without any coercion.

How did the court arrive at this conclusion?

The five-judge bench has given an exhaustive judgement covering a gamut of Constitutional questions, from fundamental rights to questions of privacy to understanding of morality. The court has made it clear that Article 14 of the Constitution guarantees equality before law and this applies to all classes of citizens. It has dismissed the position taken by a two-judge bench in 2013 that the LGBTQ community constitute a minuscule minority and so there was no need to decrminalise homosexual sex. In this, the court said it was important that the rights of minority are protected from majoritarian interference.

“An examination of Section 377 IPC on the anvil of Article 19(1)(a) reveals that it amounts to an unreasonable restriction, for public decency and morality cannot be amplified beyond a rational or logical limit and cannot be accepted as reasonable grounds for curbing the fundamental rights of freedom of expression and choice of the LGBT community. Consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality.” 

— - Chief Justice Dipak Misra and Justice AM Khanwalkar.

What does Section 377 have to do with right to privacy?

In affirming the fundamental right to privacy in 2017, a nine-judge Supreme Court bench declared that bodily autonomy was an integral part of the right to privacy, which in turn is an important facet of right to life guaranteed under Article 21. This bodily autonomy has within its ambit sexual orientation. The right to privacy judgement in a way paved the way for decriminalising homosexuality.

The court said:

“Within the compartment of privacy, individual autonomy has a significant space. Autonomy is individualistic. It is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual’s autonomy is innate to him/her. The said identity under the constitutional schemedoes not accept any interference as long as its expression is not against decency or morality. And the morality that is conceived of under the Constitution is constitutional morality. Under the autonomy principle, the individual has sovereignty over his/her body.”  

— - Chief Justice Dipak Misra and Justice AM Khanwalkar.

But what about religious beliefs that prohibit LGBTQ relationships?

All four opinions talk about the preeminence of Constitutional morality in India. The Constitution guarantees equal rights and this cannot be denied to any class of citizens by giving precedence to public or religious morality. On this, the court said:

“LGBT individuals living under the threats of conformity grounded in cultural morality have been denied a basic human existence. They have been stereotyped and prejudiced. Constitutional morality requires this Court not to turn a blind eye to their right to an equal participation of citizenship and an equal enjoyment of living.”

Has Section 377 been completely removed?

No. The section covered all unnatural offences. This means, this law will continue to apply to acts like bestiality.

Does this mean the LGBTQ community now has all rights of an ordinary citizen?

Yes. The court has declared this in principle. In his opinion, Justice DY Chandrachud said:

“Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.”

However, this does not mean the LGBTQ community will immediately get all the rights that have been so far denied to them. Rights like inheritance and marriage are founded in laws that assume heterosexuality as the norm. These have to be changed by amending the individual laws. However, Thursday’s judgement has opened the doors of the Supreme Court for the community to enforce all fundamental rights and push the state to amend all laws to recognise their rights.

Does this mean all those convicted under Section 377 will be freed from jails?

Unfortunately, no. All cases that have been already settled will not be opened. However, the court has asked the lower judiciary to take into account the judgement in all pending cases, even if the trial has begun in those cases.

In her opinion, Justice Indu Malhotra said history owes an apology the LGBTQ community:

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”