Section 377 needs to go: A Victorian relic' has no place in today's India

The arguments before the Constitution Bench hearing the 12 petitions challenging the earlier Supreme Court ruling on reading down Section 377 of the Indian Penal Code has brought joyous anticipation among the LGBTQ community in India that this time they will succeed.

It is interesting to note that the lawyers who are arguing for the petitioners challenging the earlier ruling, seeking constitutional protection of life and liberty for the LGBTQ community pleaded that criminalising homosexuality is a Victorian law, based on Victorian morality. It has nothing to do with Indian morality and Indian sentiments and commented that our temple sculptures in Khajuraho and our art and mythology bears testimony to this. Senior advocate Mukul Rohatgi, who was arguing for one of the petitioners, also mentioned Shikhandi in the Mahabharat to press home his point.

But this has been countered by one of our most vocal and controversial BJP MP Subramanian Swamy. “It is not a normal thing, we cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured,” he had commented in response to the nine-judge bench privacy ruling in 2017, which had held: “Sexual orientation is an essential attribute of privacy.”

Referring to this ruling, senior advocate Arvind Datar, arguing for yet another petitioner, pointed that the right on privacy decision would be meaningless unless it included the right to choose one’s partner. “The moment (K.S.) Puttaswamy (privacy judgment) was pronounced, Section 377 was eclipsed and is liable to be struck down,” he argued. At this, one of the judges on the bench, Justice D.Y. Chandrachud, said: “We have already held that one’s choice of partner is part of Article 21 (protection of life and personal liberty). So partner would include same sex partner too.”

The five-judge bench, which is now hearing the constitutional challenge to Section 377, is headed by Chief Justice Dipak Misra and includes Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and this time, also a woman judge, the recently-elevated Justice Indu Malhotra. The bench will examine the correctness of its 2013 verdict that had set aside a Delhi high court order which had decriminalised gay sex.

In 2009, the Delhi high court, in a historic ruling in the Naz Foundation case, had decriminalised homosexuality between consenting adults. A two-judge bench headed by an eminent jurist, Justice A.P. Shah, had observed, “As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.” In 2012, this order was set aside by the Supreme Court, which found it “legally unsustainable”. The court left it to Parliament to consider deleting the provision. A review petition filed in 2013 was also dismissed.

The most positive development in this case this time is that the Centre, in its reply filed before the court in course of the arguments on Tuesday, submitted that it will not contest decriminalisation of Section 377 as it had done on previous occasions and will leave it to the “wisdom of the court”.

This will help a great deal in curtailing the arguments and we can expect a more crisp and to the point judgment, examining the constitutionality of Section 377 and decriminalisation of same sex relationship rather than the elaborate and meandering legal treatise running into several hundred pages that the Supreme Court has been pronouncing in recent times.  

Section 377 of the Indian Penal Code criminalises homosexuality and prescribes a life term in jail for gay sex. This section deals with “unnatural offences”, and lays down that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” So the question is “What is the order of nature?”

Pointing out that acts under Section 377 come under the definition of “unnatural offences”, he asked what was unnatural. So it means even sex between a man and a woman unless done in the “conventional” way also becomes unnatural under the provision. Mr Rohatgi said being a gay or lesbian “is not a matter of choice. It is something which you are born with, and you react in a way different from the majority”. Section 377 uses the word “order of nature”, but this is also an order of nature, he argued.

But there seems to be a contradiction here. As per Justice Chandrachud, sexual orientation is a matter of choice, whereas for Mr Rohatgi there is no choice but it is a pre-ordained natural status. This argument is extremely problematic as it borders on medicalising homosexuality and comes close to what the BJP MP Subramanian Swamy had stated earlier.

To cut short this argument, Justice Nariman told Mr Rohatgi, “You should concentrate on two points — whether the order of nature is a relative concept, and whether this itself is the order of nature”.

Mr Rohatgi also sought a declaration under the Constitution for protection of the rights of “sexual minorities”, including on matters of marriage, inheritance, adoption and live-in. Additional solicitor-general Tushar Mehta objected to this, and said the court should not go into the larger issue as the same was beyond the scope of reference made to the Constitution Bench. He added that the court couldn’t proceed with such a hearing without knowing the Centre’s
stand. Justice Chandrachud told Mr Mehta that the matter was before a larger bench and restriction of issues was not appropriate.

Disagreeing with the ASG, Mr Rohatgi said: “I can argue for my rights. My life as a sexual minority has to be protected. Do not restrict this hearing to just the validity of Section 377. Our lives are passing by. How many of us can come on individual issues later? I was asking a principle to be laid down to protect my rights under Article 21.”  

Intervening, the CJI clarified that the court and parties should now confine to the question of Section 377, the other matter will be taken up when individual cases come up before it. “The question here is whether Section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now,” CJI Misra said.