As SC Begins Hearing Challenge to Section 377, a Look at the Law's Journey So Far

The court will be examining the legality of Section 377 of the Indian Penal Code, which criminalises “unnatural sex”.

New Delhi: What kinds of sex are Indians legally allowed to have? This is the question before four male judges and one female judge of the Supreme Court of India today.

The court is examining the legality of Section 377 of the Indian Penal Code, which criminalises “unnatural sex”.

“Unnatural sex” is anything that is against what the law considers to be “natural sex,” with “natural sex” being between a man and a woman and of the penile-vaginal variety. This obviously discriminates against other forms of sexual expression between consenting adults, especially among India’s sexual minorities.

And it carries a punishment of imprisonment of up to ten years.

These are the 64 words of Section 377 in the IPC which the court will be considering repealing:

“Unnatural offences.—Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

Most importantly, Section 377 criminalises sexual expression of adults belonging to the lesbian, gay, bisexual, transgender and queer (LGBTQ) community, but more generally, it also penalises non-penile-vaginal sex between heterosexual-identifying adults.

If India’s highest court kicks Section 377 out of the rule book, it would be erasing a law that can find some of its roots in 1533. This repressive section of Indian law is in fact a colonial legacy, given to India by the British. It is of course no longer illegal in Britain itself, but India has chosen not to shed this colonial artifice.

Arguments have begun on the matter in court today, nearly 465 years after “unnatural sex” was first criminalised.

So far, de-criminalisation is not being opposed by the government or other religious groups.

How did we get here?

In January this year, Chief Justice of India Dipak Misra made a surprise move. He called out an old 2016 petition from the deep-freeze, and listed it for January 8. This petition was Navtej Singh Johar and others versus Union of India.

This petition was filed in 2016, after the Supreme Court re-criminalised Section 377, which had earlier been de-criminalised by the Delhi high court.

There are five petitioners in this 2016 petition. All five are well-known and publicly successful professionals from the field of dance, journalism, hospitality and business – Navtej Singh Johar, Sunil Mehra, Ritu Dalmia, Aman Nath and Ayesha Kapur. They decided to say publicly that their personal sexual rights are affected by Section 377.

“The ability to be open with one’s friends, family, colleagues and employees about an integral and intrinsic part of one’s life and personality, is fundamental to unfold the full potential of the personality of any human being.… Being open about one’s sexual orientation is essential to the pursuit of personal and professional success and happiness.”

Misra’s move in January was unexpected as a curative petition is already pending in the Supreme Court, which sought to overturn the Supreme Court’s decision in 2013 which re-criminalised Section 377. Misra had essentially put that away, and listed these new writ petitions, indicating that the entire matter would now be heard afresh.

The 2016 petition was tagged with another 2016 petition, Akkai Padamshali versus Union of India. This second one pertains to the rights of transgender persons.

Seeing that the CJI was going to suddenly and surprisingly hear this issue as a fresh matter, four new writ petitions were filed in a flurry this year, including by petitioners who were a part of the original Naz Foundation challenge to Section 377, which won the de-criminalisation case in the Delhi high court in 2009.

Two important recent judgements contributed to the case the petitioners are making.

The nine-judge ruling of the Supreme Court in August 2017 which upheld the right to privacy (borne out of the Aadhaar case) had exciting excerpts which quite openly cleared the way for this de-criminalisation. Five of those nine judges referenced the status quo on Section 377 and pointed almost blatantly to how this is ripe for challenge.

The other is the 2014 NALSA case which officially recognised the transgender community as being of the third gender and also reasoned in detail about the right for self-determination, dignity and freedom over sexual orientation.

Supreme Court of India. Credit:

Supreme Court of India. Credit:

The four new petitions filed this year are on behalf of Arif Jaffer (who was incarcerated for 47 days under Section 377), Ashok Row Kavi (from the Humsafar Trust), Keshav Suri (a hotelier) and Anwesh Pokkuluri (representing 20 former and current students at IIT).

They have all been tagged together, and now six writ petitions are before the Supreme Court.

A host of India’s top lawyers are likely to argue in favour of de-criminalisation, including Mukul Rohatgi, Anand Grover, Arvind Datar, Menaka Guruswamy, Shyam Divan and Jayna Kothari.

Criminalisation, de-criminalisation, re-criminalisation

In July 2009, the Delhi high court de-criminalised gay sex.

“We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14, and 15 of the Constitution,” said a division bench of the Delhi high court, comprising Chief Justice A.P. Shah and Justice S. Murlidhar (Naz Foundation vs Government of NCT of Delhi and others).

This historic order came after an eight-year-long legal battle which began with Naz Foundation’s petition in 2001 to scrap this section of the law.

The relief was hard-fought but short-lived.

This is because the Delhi high court’s judgement was appealed in the Supreme Court, and the apex court overturned the judgment in December 2013.

“Section 377, which holds same-sex relations unnatural, does not suffer from unconstitutionality,” said a two-judge bench of the Supreme Court, comprising of Justices G.S. Singhvi and S.J. Mukhopadaya.

This decision was then appealed in the Supreme Court via a review petition, and the last known status was that of a pending curative petition. This has now taken a backseat, with the six new petitions being filed and the matter being heard again.

What to expect

The Union government has been silent on the matter. They were supposed to file their replies in court, stating their stand, but are yet to do so. Arguments against Section 377 have begun in court irrespective, but it is somewhat happening in the dark, without the petitioners knowing the stand of the state.

Yesterday, the government asked the court to defer the case and give them time to file their replies. Chief Justice Misra did not accede to this.

The outcry against the Delhi high court’s de-criminalisation in 2009, and its legal challenge, was led largely by religious groups. The All-India Muslim Personal Law Board, the Apostolic Churches Alliance and the Delhi Commission for Protection of Child Rights had all opposed the judgment. A Delhi-based astrologer, one BJP member and one disciple of yoga guru Ramdev had also opposed the de-criminalisation. These groups have also not shown up in this case yet.

As of now, arguments against Section 377 have begun without any opposition, but these can come up over the next few days as well.