SC judgement on Section 377 today; A look at the history of the archaic law

Section 377 of the Indian Penal Code is a relic of British India, having been introduced way back in 1861. It was modelled on a 16th-century British law called the Buggery Act, which was the first such civil law that criminalised certain kinds of sexual intercourse. 

The Supreme Court is expected to pass its judgement on the legality of the section on Thursday. It has heard arguments representing all sides of the issue over the last few months.

Even though homosexuality was partially legalised in England more than fifty years ago, it stayed on as an illegal act in India. The Guardian reported last year that 72 countries and territories worldwide continue to criminalise same-sex relationships, including 45 in which sexual relationships between women are outlawed. 

Amish Tripathi, a noted Indian mythologist, argues Section 377 does not reflect the traditional Indian attitude towards sex. It is, instead, he argues, a reflection of the British colonial mindset, influenced by medieval interpretations of Christianity.

He cites several examples and anecdotes from Hindu religious texts to make his point -- that LGBT rights were accepted in ancient India.

"Purush napunsak nari va jiv charachar koi / Sarv bhav bhaj kapat taji mohi param priy soi. (Any man, any transgender, any woman, any living being, as long as they give up deceit and come to me with love for all, they are dearest to me.)"

"These lines were said by Lord Ram in the Ramcharitmanas. He did not differentiate between man, woman or transgender. What does this mean? According to me, this shows our liberal ancient attitude towards LGBTs. And there are other examples in the Mahabharata too. Such stories were celebrated in ancient India and this, to my mind, reflects the liberal attitude we had towards LGBT communities," he elaborated.

Naz Foundation vs Govt. of NCT of Delhi

A historic judgement delivered on 2 July 2009, Delhi High Court overturned the 150-year-old section, legalising consensual homosexual activities between adults. The court said that the section goes against the fundamental rights of citizens while striking it down. 

Here's what the judgement said: 

"If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants' or 'different' are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual."

Supreme Court harks back to the past

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.

The judgment that overturned a previous judgment by Delhi High Court that decriminalised homosexual acts also said "plight of sexual minorities" cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

The apex, however, noted that the Parliaments should debate and decide on the matter. 

What legal luminaries think

"Section 377 is dead after the nine-judge bench which has said all these are matters of Right to Privacy. They have covered the entire ground. It will formally be struck down. It will be done very soon", Harish Slave told news agency ANI.

Rajeev Dhavan and Dushyant Dave criticised the apex court's 2013 verdict declaring the IPC provision penalising gay sex as constitutional and said the two-judge bench seemed to have taken "an unwarranted view" which "requires a serious reconsideration" of the archaic law. 

Kamini Jaiswal, Colin Gonsalves and Grover said it was high time that the 2013 judgement was revisited. They said the apex court has correctly placed the matter before the five-judge constitution bench, which is hearing a curative petition against the SC order, and it will be eagerly seen what they are going to do.

Dave said: "It's quite refreshing to see a positive stand in the matter. The judgement of the apex court declaring 377 to be intra vires really requires serious reconsideration. This provision itself, on the face of it, is archaic and wholly unconstitutional. Nobody can support it under any circumstances.

"The judgement of the Supreme Court was, in fact, quite surprising, and I would say it was quite orthodox not in tune with the changing times," he said.

Dhavan said the view taken by the judges in the 2013 verdict was clearly wrong.

"Unfortunately, the two-judge bench seems to have taken an unwarranted view on section 377 in the 2013 verdict criminalising gay sex. The view was clearly wrong. They should have sent it to a larger bench. Now let's hope that a Constitution Bench hears it," he said.

The privacy debate

A landmark judgment on the right to privacy by a nine-judge bench of Supreme Court in August 2017 criticised the 2013 SC judgement.

The landmark judgment by the bench which also had the then Chief Justice J S Khehar said the rights of the LGBT and sexual minorities are not "so-called" but are "real rights founded on sound constitutional doctrine".

It called the previous judgment in the Suresh Kumar Koushal vs Naz foundation case a "discordant note" which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.

"The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be 'so-called rights'. The expression 'so-called' seems to suggest the exercise of a liberty in the garb of a right which is illusory," it said about the 2013 judgment.

"This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not 'so-called' but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity.

"They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination," said a portion of the 547-page judgment.

SC leans towards modernity

The five-judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra had reserved the verdict on July 17 on the conclusion of arguments.

The tone and tenor of the hearing of the matter on July 17 - the day the verdict was reserved - saw the court telling that it was duty-bound to strike down a law that is in conflict with the fundamental rights and not to leave it to majoritarian government to address it.

"It is our duty to strike a law the moment we find a law in conflict with fundamental rights. We don't leave it to the majoritarian government, which may or may or act" given the exigencies of its vote bank politics, the constitution bench had said.

"The moment we are convinced that a law is violative of the fundamental rights we will strike it down and not relegate it to legislature," the court had said.

The hearing saw the Constitution bench disagreeing with some of the respondents telling it that decriminalizing the same sex relationship amongst the LGBT community would have a cascading effect on other statutes including the personnel laws and the spread of dreaded diseases like HIV and AIDS.

Unimpressed by the submission, Justice Nariman had said that there would be "no cascading effect" as all such references in other statutes will get deleted.

Justice Chandrachud rejecting the contention had said that the cause of the sexually transmitted diseases was not sexual intercourse but unprotected sex.