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India: Supreme Court decriminalizes homosexuality

Thursday 6 September 2018, by siawi3


Supreme Court Scraps Section 377; ’Majoritarian Views Cannot Dictate Rights,’ Says CJI

A constitution bench delivered a unanimous verdict against the colonial-era law that criminalised ’unnatural sex’.

Supreme Court Scraps Section 377; ’Majoritarian Views Cannot Dictate Rights,’ Says CJI

The Wire Staff

6.09.18 - 10 hours ago

New Delhi: A Supreme Court constitution bench on Thursday pronounced a unanimous verdict – in four concurring judgments – scrapping the provisions of Section 377 of the Indian Penal Code, which criminalise ‘unnatural sex’ between consenting adults, and was effectively used to criminalise homosexual relations in India for more than a century.

The judgment decriminalises sexual acts between consensual adults and brings the curtains down on a decade-long legal struggle that saw the Delhi high court first strike down Section 377 as unconstitutional only to have the Supreme Court bring it back into play.

A five-judge constitution bench headed by Chief Justice Dipak Misra and comprising Justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra had reserved its verdict on July 17 after hearing various stakeholders, including LGBTQIA+ rights activists, over four days.

The parts of Section 377 pertaining to sex with animals and children will remain, the court said.

On Thursday, four separate but concurring judgments were delivered, authored by CJI Misra, Justice Chandrachud, Justice Nariman and Justice Malhotra. The chief justice began by reading the judgment by him and Justice Khanwilkar, saying, according to LiveLaw, “Section 377 is arbitrary. The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.”

The bench has overruled the Supreme Court order in the Suresh Kumar Koushal case, which re-criminalised ‘unnatural sex’, Bar and Bench quoted CJI Misra as saying. “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression,” the court said. “The provision of IPC had resulted in collateral effect in that consensual sex between LGBT persons is criminalised, and is violative of Article 14, Supreme Court.”

Justice Nariman delivered his judgment next, saying that the Suresh Kumar Koushal was no longer good law in view of the NALSA and Puttaswamy judgments. He also said that “homosexuality cannot be regarded as mental disorder” and “homosexuals have the right to live with dignity”.

Justice Chandrachud delivered his judgment after Justice Nariman, saying, “Section 377 inflicts tragedy and anguish; it has to be remedied.”

“This case is much more than just decriminalising a provision It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens,” Chandrachud continued. He too brought up the right to privacy judgment from last year, “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation.”

He added that IPC Section 377 has been destructive to the LGBT identity.

Justice Malhotra read out her judgment last, saying that history owes an apology to those who have been persecuted and socially ostracised because of Section 377.

Section 377 of the Indian Penal Code criminalises “unnatural 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.

These were the 64 words of Section 377 in the IPC which the court was deliberating on:

“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.”

This repressive section is a colonial legacy, given to India by the British, and has been a part of Indian laws in some form or the other for close to 165 years now. “Unnatural sex” is of course no longer illegal in Britain itself, but India has chosen not to shed this colonial artifice.

Modi government did not oppose petitions

During the hearing, the Narendra Modi government told the Supreme Court that it will not be opposing the petitions challenging Section 377. Additional Solicitor General Tushar Mehta said that the government will be leaving the decision to the court, but asked that the court not rule on related matters such as marriage rights for the LGBT community.

“In the most respectful submission of the Union of India, allowing any other issue (other than constitutional validity of Section 377) to be argued and adjudicating the same with giving an opportunity to the Union of India to file a counter affidavit to the Union of India may not be in the interest of justice and would be violative of principles of natural justice,” the Centre’s affidavit said.

The government took several months to file its response in the case, leading to speculation on whether or not it would be opposing the plea.

The Supreme Court. Photo Credit: PTI

Opposition from Christian groups

While Hindu, Muslim and Christian religious groups were all active during the earlier hearings on the de-criminalisation of Section 377, this time around, only three Christian groups challenged the petitions. The bench had asked these groups how this would impact their religious freedom. “What is its impact on your religious freedom?” asked Justice Nariman. “You go ahead and practice your religion.”

Suresh Kumar Koushal, who had unexpectedly won the re-criminalisation of Section 377 after the Delhi high court had de-criminalised it, also took his opposition to the court. “As a logical person, I can understand there is some problem with this section. But will the cure be worse than the disease, we have to see,” his lawyer, Soumya Chakraborty, said. He gave the example of “group sex” and said, “To what extent will they ask for liberty?”

A law that has been challenged before

As The Wire has reported before, Section 377 has seen several challenges in the past, including one that was temporarily successful. 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).

However, this relief was short-lived. 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, and was not the case the Supreme Court was hearing while pronouncing its verdict today.

In January this year, Chief Justice of India Dipak Misra called out an old 2016 petition and listed it for January 8. This petition was Navtej Singh Johar and others versus Union of India, filed in 2016, after the Supreme Court struck down the Delhi high court order.

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.

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.

After the CJI announced his decision to hear these old petitions, four new writ petitions were filed 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.

All of these petitions were tagged together, so the Supreme Court was hearing six petitions at the same time when it decided to de-criminalise homosexual sex.



Notes From the Courtroom: Watching the SC Dump Section 377

Petitioners, lawyers, activists and a range of members from the queer community, were all smiles on Thursday, as Chief Justice Dipak Misra quoted Shakespeare and justice D.Y. Chandrachud a Leonard Cohen song while decriminalising Section 377.

Photo: Lawyers Arundhati Katju and Menaka Guruswamy, petitioner Keshav Suri and his partner and Devdutt Pattnaik celebrate the Supreme Court’s judgment. Credit: Anoo Bhuyan/The Wire

Anoo Bhuyan

6.à9.18 - 5 hours ago

New Delhi: Tears flowed down the faces of queer people in the Supreme Court on Thursday as the five judges read out their judgments, unanimously decriminalising queer sexual expression in India.

“And we are all of concurring opinion,” said Chief Justice Dipak Misra as he began reading out the unanimous and historic judgment of the five-judge bench to a packed court room.

Petitioners, lawyers, activists and a range of members from the queer community along with their supporters, were all smiles in court on Thursday. People hugged and kissed each other. Others greeted each other across the court room with waves, mouthing words of support. People had brought their partners, friends and parents to witness the historic judgment being passed.

People walked into court feeling hopeful and nearly certain of the outcome. The only thing left, was a confirmation from the bench of what many have already been feeling would be the only possible outcome for India – decriminalisation. Four days of seemingly positive arguments in July had kept people hopeful.

People walked out of court feeling “overwhelmed” as Ayesha Kapur said and “ecstatic,” as Keshav Suri said. “Great judgment,” said Anjali Gopalan. Kapur, Suri and Gopalan are petitioners in this case. Gopalan and the Naz Foundation had filed the initial petition to read down Section 377, 17 years ago, in 2001. Kapur and Suri are recent petitioners, who docked in their petitions in 2016.

Section 377 is a repressive British-era law that survived for over 158 years, including 71 years in independent India, until Thursday.

The judgment read down the repressive Section 377 of the Indian Penal Code that has criminalised sexual expression between consenting adults, especially of the LGBTQIA+ community.

The law has manifested itself in the form of harassment – by police, families, medical professionals and others – who have backed their discrimination and harassment with this law.

Swami Agnivesh speaking to reporters outside the Supreme Court after decriminalisation of Section 377. Credit: Anoo Bhyuan/The Wire

Pronouncing the judgment

The unanimous judgment was authored by four out of the five judges on the bench.

Misra read his order first, beginning with quotes by famous thinkers and authors, as is his style. In his order he quoted Johann Wolfgang von Goethe, John Stuart Mill and Shakespeare.

“That which we call a rose by any other name would smell as sweet,” he said, reciting Shakespeare. He went on to explain, that what matters are the essential qualities of people and not the names we call people and labels we give.

He concluded by saying clearly that the Supreme Court judgment in 2013 – which re-criminalised queer sexual expression after the Delhi high court had read it down – was now overturned by Thursday’s judgment. The contentions of the 2013 judgment were “constitutionally impermissible” and “fallacious”, he said, because “the framers of our constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only.”

Misra wrote that “Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.” Article 14 of the Indian Constitution guarantees equality before the law.

“Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice,” says his order.

Responding to the larger issue of discrimination and not just the ability to engage in acts of sexuality, Misra wrote: “Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression.”

Justice Nariman briefly went through his order, but importantly said that the government must ensure that the apex court’s judgment is given “wide publicity” on television, radio, print and online. He also said that “all government officials, including and in particular police officials” should be given periodic sensitisation and awareness training.

Justice Chandrachud began reading his order by pithily saying, “The lethargy of the law is manifest yet again.”

He also quoted a Leonard Cohen song from 1992 called ‘Democracy’ which has the line, ‘Ashes of the gay.’

Chandrachud, during the argumens in July also showed some interest in hearing the arguments on whether the decriminalisation of Section 377 can open the door towards other civil rights for the LGBTQIA+ community. His order drops some hints:

“(ii) 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;”

“(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;”

The last judge to read was Justice Indu Malhotra, one of two female judges in the Supreme Court, and was recently appointed as a judge. She left the court room ringing when she said, “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.” She said that this historical injustice has been on account of the “ignorance of the majority” to recognise queer sexual expression and its complexity.

As people filed out of the court room, the landing of the Supreme Court was filled with people exchanging hugs and taking photographs to commemorate a historic day not just for human rights in India, but for the ideas of dignity, liberty and self-determination for people all over the world.



A Look Back At Those Who Aided, and Hindered, the Fight Against Section 377

Since 2001, when the legal challenge to the criminalisation of consensual sex between adults of the same gender began, a vast cast of characters have entered and exited the battlefield.

A Look Back At Those Who Aided, and Hindered, the Fight Against Section 377

Photo: The country’s top court has ruled that we have to embrace inclusion and ensure equal rights. Credit: Reuters

The Wire Staff

6.09.18 - 3 hours ago

New Delhi: No epic war – and the victorious struggle for LGBTQ+ rights in India is certainly one – is complete without a cast of characters who bring to the battlefield qualities such as heroism and cowardice, innocence and guile, loyalty and treachery.

Homosexual relations were criminalised in India for the first time 158 years ago when Section 377 of the Indian Penal Code outlawed what it called “carnal intercourse against the order of nature”. On Thursday, September 6, 2018, a five judge bench of the Supreme Court finally held that this section would no longer apply to consensual sexual acts between adults.

“Section 377 is arbitrary,” the bench declared. “The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights.”

In saying so, the court over-ruled a judgment that a two-judge bench of the apex court order had passed in 2013 in the Suresh Kumar Koushal case which had re-criminalised ‘unnatural sex’ four years after the Delhi high court had de-criminalised it.

In light of Thursday’s landmark judgment, The Wire looks back at the cast of characters who contributed all the twists and turns in this long struggle

1. The heroes…

Justice Ajit Prakash Shah and Justice S. Muralidhar
On July 2, 2009 judgment that was considered momentous at the time, Justice A.P. Shah, then chief justice of the Delhi high court, and Justice S. Muralidhar had decriminalised homosexuality in India for the first time. The colonial-era law has been a part of the Indian legal system in some form or the other for nearly 165 years and has been used to target sexual minorities and homosexual couples. “Unnatural sex” is of course no longer illegal in Britain itself, but India has chosen not to shed this colonial artifice.

In a landmark 105-page judgement, Justice Shah, who has since retired, and Justice Muralidhar, who is still a judge of the Delhi high court, declared Section 377 of the IPC as violating Article 21 (right to life), 14 (right to equality) and 15 (non-discrimination on grounds of sex and gender) of the constitution. The verdict in Naz Foundation vs Government of NCT of Delhi held that treating homosexual sex between consenting adults as a crime was a violation of their fundamental rights.

Photo: Justice A.P. Shah (Retd.) and Justice S. Muralidhar of the Delhi high court. Credit:

In an interview with LiveMint in August 2013, Shah revealed that due to his judgment decriminalising homosexuality, he has had to deal with knee-jerk outrage disguised as community sentiment. “Any person who believes in democracy should be worried by this trend in our country,” he declared.

Shah and Muralidhar’s judgment was a major shot in the arm for the LGBTQ+ movement in the country. Quoting Jawaharlal Nehru’s speech while moving the Objective Resolution, the order read: “Words are magic things often enough, even the magic of words sometimes cannot convey magic of human spirit and of a nation’s passion …(this resolution seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future)”.

Anjali Gopalan
The founder and executive director of Naz Foundation, Anjali Gopalan has been at the forefront of India’s fight to decriminalise homosexuality. In 2001, the Naz Foundation under Gopalan became the original petitioner for scrapping Section 377 under which individuals are harassed and discriminated against based on their sexual orientation, a battle that they won in 2009, albeit temporarily.

Speaking to The Hindu in December 2013 – soon after the Supreme Court overturned the July 2009 judgment – Gopalan said that it was because of the Delhi high court order that thousands had gotten “the courage to come out of the closet,” and taking away that right from them by re-criminalising homosexuality was a reflection of what we as a country are “doing with our minorities”.

“We are becoming more and more intolerant of the other.”
Taking a serious view of the Tamil Nadu government’s failure in implementing the court’s earlier direction on reservation to transgenders, the judge said a decision shall be taken on or before November 27. Credit: Wikimedia Commons

Photo: Anjali Gopalan at a pride parade. Credit: Wikimedia Commons

Anand Grover
The senior lawyer and activist had in 2009 led the Naz Foundation’s legal case for repealing Section 377. Grover, who has been working for LGBT+ and human rights in the country, continued to believe after the Supreme Court’s 2013 order that “the last victory will be ours”.

SC judges on right to privacy bench
In August 2017, a nine-judge bench of the Supreme Court declared the right to privacy as a fundamental right in a case originally about challenging the constitutional validity of the Indian biometric identity scheme Aadhaar. Thanks to the way they framed their judgment, the Supreme Court justices effectively reopened the issue of Section 377.

At least three of the five separate but concurring judgments that made up the Supreme Court’s privacy ruling – the four-judge judgment authored by Justice D.Y. Chandrachud on behalf of the Chief Justice J.S. Khehar, Justice R.K. Agarwal, himself and Justice Abdul Nazeer, and the judgments of Justice Sanjay Kishan Kaul and Justice S.A. Bobde – explicitly tackled the implications of privacy as a fundamental right on Section 377 or the sexual orientation of a citizen.

Justice D.Y. Chandrachud, while delivering the main judgment, held that privacy is intrinsic to life, liberty, freedom and dignity and therefore, is an inalienable natural right.

“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform.”

Stating that sexual orientation was implicit in the right of choice, the order said this was a facet of the right to privacy. The court further held that the right to privacy cannot be denied, even if there is a minuscule fraction of the population which is affected.

The wording was significant since the LGBTQ+ community has been referred to as a ‘minuscule’ minority group in the 2013 Supreme Court judgment re-criminalising homosexuality. “One’s sexual orientation is undoubtedly an attribute of privacy,” Chandrachud had said, adding, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.”

Petitioners in Section 377 case
Among those who fought – and won – the good fight is a group of 20 students and alumni of the Indian Institutes of Technology who asked the apex court “for a declaration that Section 377 of the IPC violates Articles 14, 15, 16, 19 and 21 of the constitution” and to ensure the right to equality before the law so that there is no discrimination against anyone for their sexual orientation.

Photo: Lawyers Arundhati Katju (second from left) and Menaka Guruswamy (third from left), petitioner Keshav Suri and his partner and Devdutt Pattnaik (in green shirt) celebrate the Supreme Court’s judgment. Credit: Anoo Bhuyan/The Wire

Menaka Guruswamy and Arundhati Katju
The Supreme Court advocate was at the helm of making concrete arguments to strike down Section 377 as it violated Articles 14, 15, 19 and 21 of the constitution.

Guruswamy and Katju represented the IIT students, graduate and alumni who belong to the LGBTQ+ community that had petitioned the Supreme Court. Guruswamy asked the bench, “How strongly must we love knowing we are unconvicted felons under Section 377? My Lords, this is love that must be constitutionally recognised, and not just sexual acts.”

2. Those they were up against…

Apart from British colonial state, which bequeathed a homophobic law to independent India, the LGBTQ+ community in India has had to battle the prejudice, indifference and cowardice of politicians cutting across all political parties who saw no reason to remove from the statute books a law that was a clear violation of the right to equality enshrined in the constitution.

As the battle moved to the courts in 2001, the opposition solidified around a clutch of individuals and organisations who led the charge in favour of holding on to Section 377.

B.P. Singhal
The Hindutva ideologue and BJP leader was among the respondents in the 2009 Naz Foundation case and opposed the legalisation of gay sex in the Delhi high court. He had then challenged the verdict in the apex court saying that homosexuality was illegal, immoral and against the ethos of Indian culture. In an interview with Kafila, the late BJP leader said he believed gay sex is “unnatural.”

“It’s unnatural. The anus is designed only for exit of things. Therefore, the mucus membrane of the anus is soft and can be torn. The vaginal mucus membrane is tough. When a woman is desirous of sex, the vaginal canal is irrigated. No such lubrication takes place in the anus.”

A former police officer, Singh was also a BJP MP.

Justice G.S. Singhvi and Justice S.J. Mukhopadhaya
In December 2013, Supreme Court Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhaya reversed the Delhi high court’s 2009 judgment stating that criminalising homosexuality was “unconstitutional.”

Claiming that Section 377 is not unconstitutional, the apex court ruled that the Delhi high court had “overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”

Suresh Kumar Kaushal
If a major blow was inflicted on LGBTQ+ rights by the December 2013 Supreme Court judgment, Suresh Kumar Kaushal was the face of that case.

In 2009, soon after the Delhi high court ruling, Kaushal, along with the All-India Muslim Personal Law Board, Trust God Missionaries and Krantikari Manuwadi Morcha, filed a petition in favour of re-criminalising gay sex. Speaking to The Hindu, Kaushal said homosexuality was “simply unnatural” and that one of the motives behind challenging the Delhi high court judgement was that it was a “religious issue”.

“After homosexuality was decriminalised, a lot of gay men and lesbians began approaching temples and gurudwaras for marriages. They had to put a ban on this as marriage in every religion follows certain rituals.”
Delhi Pride Parade LGBTQ rights

Photo: Delhi pride parade: Credit: Karnika Kohli/The Wire

Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries
The final challenge against Section 377 in the Supreme Court went unopposed except by three obscure Christian groups, the Apostolic Alliance of Churches and the Utkal Christian Council – which were respondents in the earlier curative petition on Section 377 – and the Trust God Ministries. On the last day, they were joined by a lawyer saying she had just received a brief from Kaushal.

Subramanian Swamy‏
The senior BJP leader has a long-held belief that homosexuality is against Hindutva. Claiming that it is an “American habit,” the former Union cabinet minister believes that the legalisation of consensual gay sex will lead to “commercial profits” since gay bars “will be opened in all cities on FDI.”

“The Americans want to open gay bars, and it’ll be a cover for paedophiles. It will only increase HIV cases. The government should invest in medical research to see if homosexuality can be cured. It is not a normal thing. We cannot celebrate it,” Swamy‏ has been quoted as saying.

Earlier this year, Swamy said homosexuality was not a problem if “they don’t celebrate it, don’t flaunt it.” Today, minutes after the landmark Supreme Court ruling in the matter, the leader told CNN-News18 that the order would give rise to what he alluded to as social evils.

Baba Ramdev
The yoga guru believes homosexuality to be a disease and claims he can cure it. In December 2013, Ramdev extended an invitation to members of the community to his ashram saying that he guaranteed that yoga could “cure the bad addiction.”

“Homosexuality is not genetic. If our parents were homosexuals, then we would not have been born. So it’s unnatural,” he said.