Supreme Court in January 2018 announced that it would revisit section 377 of India’s Penal Code, which criminalises consensual same-sex conduct.
In 2016, five prominent representatives of the LGBT community Bharatnatyam dancer and Sangeet Natak Akademi Award winner Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder/chairman Aman Nath and businesswoman Ayesha Kapur filed a writ petition, as individuals directly affected by the law, which prompted the Supreme Court to order a reconsideration of the 2013 decision by a larger bench, saying that the ruling was inconsistent with a recent ruling on privacy rights.
The court agreed that there was a need to consider the implication of the privacy judgement that includes sexual orientation and individual autonomy, framing the debate within the parameters of the right to life guaranteed by Article 21 of the Constitution raises the need to take another look at the constitutional validity of Section 377 of the Indian Penal Code (IPC), which criminalises same sex intercourse, even when it is consensual and between adults.
The court noted that “a section of people or individuals who exercise their choice should never remain in a state of fear” and “societal morality also changes from age to age”.
A five-judge constitution bench comprising Chief Justice Dipak Misra, Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra on 8th September 2018 unanimously struck down part of the section 377 of the Indian Penal Code (IPC) which criminalised gay sex, saying that it violated the constitutional right to equality and dignity.
The court declared Section 377 of the Indian Penal Code to be unconstitutional to the extent that it criminalises consensual sexual acts between adults whether homosexual or heterosexual. However, non-consensual sex and bestiality, or having sex with animals, will continue to be a crime.
The judgement makes a note of the statement issued on 6 June, 2018 by the Indian Psychiatry Society (IPS), which said the “Indian Psychiatric Society would like to state that there is no evidence to substantiate the belief that homosexuality is a mental illness or a disease”. Emphasising that the Constitution is an organic and breathing document with senses, capable of adaptation, the court added that the judiciary “cannot remain oblivious to the fact that the society is constantly evolving”.
The court directed the Centre to “take all measures to ensure that this judgment is given wide publicity through the public media” at regular intervals and “initiate programs to reduce and finally eliminate the stigma associated with such persons”. All government officials — particularly police officials — are to be given periodic sensitisation and awareness training of the plight of such persons
Section 377 violates fundamental rights claims petitioners, those fundamental rights are as follows:
Article 14 – Right to equality
Section 377 violates the obligation on the state to ensure equal opportunities for vulnerable sections of the society.
Article 15 – Prohibition of Discrimination
The section reads, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Section 377 unlawfully discriminates against the LGBTQ community on the basis of sex.
Article 21 – Right to Life and Personal Liberty
Article 21 reads, ‘No person shall be deprived of his life or personal liberty except according to a procedure established by law’. Section 377 of the IPC criminalises ‘unnatural’ sexual acts such as anal sex.
Article 19 (1)(a) – Freedom of Expression
Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one’s right to expression of his self-identified gender. Self-identified gender can be expressed through dress, words, action or behaviour or any other form. The criminalisation of Section 377 will have a chilling effect on the members of the LGBTQ community as it will restrict them from expressing them fully