Section 377: Supreme Court Legalises Consensual Sex Between Homosexual Adults

LGBT Activist, Ashok Row Kavi

"We have finally got justice," Ashok Row Kavi, LGBT rights activist and founder of Humsafar Trust, told ANI. “We are finally ‘azaad in azaad Hind’.”

Shashi Tharoor

Congress Leader Shashi Tharoor took to Twitter to welcome the Supreme Court's decision.

Karan Johar

"The country gets its oxygen back," said Producer and Director Karan Johar who has previously taken several stands for the LGBT movement. "Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights!" he tweeted.

Keshav Suri

“All the lawyers and judges who have worked on this are the people to be interviewed and thanked,” said Keshiv Suri, executive director of The Lalit Suri Hospitality Group and a petitioner against Section 377.

“It is massive time to celebrate.”

Justice Chandrachud acknowledged lawyers appearing in the case Mukul Rohatgi, Arvind Datar, Menaka Guruswamy, Shyam Divan, Anand Grover and others.

There is a split between values on which Section 377 is based and the values of the Constitution, said Justice DY Chandrachud. The denial of right to sexual orientation is also denial of right to privacy, he said.

• Colonial law made gays and lesbians subordinate to other individuals of the society.
• Gays, lesbians, bisexuals and transgenders continued to be denied equal rights seven decades after independence.
• Sexual orientation has become a means to target and blackmail.
• It is difficult to right the wrongs of history. But we can set the course for the future.
• LGBT members are entitled to have all the rights of citizenship.
• Sexual minorities were forced to live as second class citizens.
• This case is about a right which every human being has, to live with dignity.
• What is natural and unnatural? And who decides? Do we allow the state to decide what is natural and unnatural between consenting adults?
• Constitution protects diversity in all its facets. It does not demand conformity.
• Section 377 rests on deep rooted gender stereotypes.
• Privacy judgment rejected the argument that rights of the LGBT community is illusory.
• Human sexuality cannot be reduced to a binary
• Society cannot dictate sexual acts between consenting adults.
• State has no business to intrude in these personal matters.
• Citizens of a democracy cannot be forced to push their lives into obscurity by a colonial era law.

Members of the LGBT community are entitled to be treated equally without any stigma attached to them, said Justice Rohinton Nariman, while reading his individual judgment.

Decisions of Justice DY Chandrachud, Justice Rohinton Nariman and Justice Indu Malhotra will be read out shortly.

Section 377 has been partially struck down, Chief Justice Dipak Misra said today.

• Section 377 is violative of Article 14.
• Section 377 subjects LGBT community to become pariah.
• It has become a means for unequal treatment.
• Section 377 so far as it criminalises any consensual act between two consenting adults, is unconstitutional.

Societal morality cannot trump constitutional morality, observed Justice Misra today. "Sexual orientation is a biological phenomena which is natural in all individuals," he said.

• Sustenance of identity is the pyramid of life.
• Individuals face social exclusion, identity seclusion today.
• It is only when each individual is liberated from shackles of this bondage, can we call ourselves a truly free society.
• Denial of self-expression is like death.
• Respect for individual choice is hallmark of a free society.
• Dignity is an inseparable aspect of every individual.
• Sexual orientation is a biological phenomena which is natural in all individuals.
• Argument in favour of Section 377 that only a miniscule population comprises of LGBT community strikes a discordant note.

“No one can escape from their individualism,” observed Justice Misra while reading out his individual judgment. “Respect for individual choice is hallmark of a free society,” he said.

Constitution bench of five judges led by Chief Justice of India Dipak Misra have entered the courtroom. Delivery of the four individual judgments will begin now.

Pronouncement of the judgment on validity of IPC Section 377 will begin at 11:30 a.m.

The opposition to the petitions was led by Christian groups Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries. Advocate Manoj George represented the first two and Senior Advocate KS Radhakrishnan the third.

They said the central government has taken a U-turn on the issue, and argued that Section 377 is not based on the idea of Victorian morality and that this issue must be left to the wisdom of Parliament.

The organisations argued that the idea of a person being born with a particular sexual orientation is wrong and is not supported by science.

Trust God Ministries argued that Section 377 acts as a means to prevent HIV/AIDS and if the section is struck down, it will result in rapid spread of AIDS. At one point during the hearing, George was told by the bench that some of his arguments seem to be sourced from hate websites.

The central government took a neutral stance, leaving the decision to the “wisdom of the court” as long as it applies to “consensual acts of adults in private”.

If the case also involves other rights and issues of the LGBTQ community such as marriage, adoption, and inheritance, the government would like to contest on those points, Additional Solicitor General Tushar Mehta said while filing the government’s affidavit in the court. Such rights, if granted, will have consequences which are neither contemplated in the reference nor required to be answered by the Supreme Court, the affidavit said.

On the rights of the LGBTQ community in areas such as jobs, Chief Justice Misra observed that once Section 377 is no longer a bar on them to express their sexual orientation, the discrimination they faced would vanish as well.

Former Attorney General of India and Senior Advocate Mukul Rohatgi, who started arguing for petitioners, said the 2013 Supreme Court judgment that upheld Section 377 was bad in law and has to be struck down. Rohatgi said sexual orientation is not a matter of choice but is innate, and something that is natural cannot be criminalised.

Justice Malhotra, during the arguments, observed that homosexual behaviour is found not just in humans, but animals as well.

Senior Advocate Arvind Datar said that central government had not challenged the 2009 Delhi High Court decision that struck down Section 377. He also cited the recent nine-judge verdict that held privacy to be a fundamental right. In that judgment, he said, the apex court noted that “right to privacy includes decisional privacy which is an ability to make intimate decisions primarily consisting one’s sexual or procreative nature and decisions in respect of intimate relations”.

Continuing arguments for petitioners, Advocate Menaka Guruswamy called Section 377 “arbitrary” and one that is based on ideas of Victorian morality. Citing Article 15 that bars discrimination on the basis of sex, she argued Section 377 discriminates on basis of sex of a person’s sexual partner; and, hence, hits the bar placed by Article 15, making it unconstitutional.

Guruswamy also cited the recent case of Hadiya, the Kerala medical student who had embraced Islam and wanted to marry a Muslim man. The top court, in that case, had held that the right to choose a partner a fundamental right. Section 377 criminalises choosing a same-sex partner and hence violates the principle enunciated in the Hadiya case, she argued.

Senior Advocate Anand Grover also highlighted arbitrary application of Section 377 due to its poorly defined scope. He cited the example of a man who was held for distributing condoms to gay men and didn’t find a lawyer to represent him.

The petitioners also argued on the impact on the mental health of the members of the LGBTQ community. Justice Chandrachud agreed that society has developed in a manner which has led to disdain for the community, impacting their mental health.

The Supreme Court of India will rule today on the constitutional validity of the Section 377 of the Indian Penal Code that criminalises homosexuality between consenting adults.

A five-judge constitution bench headed by Chief Justice of India Dipak Misra heard petitions filed against the colonial-era law by, among others, Keshav Suri, the executive director of The Lalit Suri Hospitality Group, and the Naz Foundation.

They filed a review petition against the Supreme Court’s 2013 ruling that re-criminalised homosexuality, overturning Delhi High Court’s 2009 verdict that had held Section 377 “illegal”. The hearing this time saw minimal opposition from the government, which left it to the wisdom of the top court. The only challenge came from three Christian groups who opposed it on theological grounds.

Apart from Chief Justice Misra, the bench comprises Justice Rohinton Nariman, Justice DY Chandrachud, Justice AM Khanwilkar and Justice Indu Malhotra.