Even as a constitutional bench of the Supreme court sat for re-examination of the constitutional validity of section 377 of the Indian Penal Code, hope once again emerged amongst the proponents of LGBT rights. This archaic provision based on British common law dates back to 1861 and criminalises sexual activities against the order of the nature extending to sexual union involving penile insertion. The archaic law thereby criminalises same-sex relationships but is not necessarily restricted to same-sex relationships. It was decriminalised in a landmark and progressive Delhi High Court judgment in 2009, only to be reversed and overruled by the Supreme Court in its 2013 judgment, Suresh Kumar Kaushal v Naz Foundation.
In January this year, the top court had said that it will reconsider its 2013 judgment, and the petition was taken up yesterday by the five-judge bench. Rohatgi appearing for the petitioners argued that the section’s text suggests archaic Judeo-Christian norms of collective morality. It deems any instance of non-procreative, heterosexual intercourse as unnatural and warrants a maximum punishment of imprisonment for life. He further stated that the text of the provision has remained unaltered in the last 150 years and punishes any form of penetrative sexual activity among consenting adults irrespective of their sexual orientation. Coming to the constitutionality of the impugned provision and the correctness of the judgment under question, Rohatgi argued that if the provision is bad, then social perception is immaterial. He added that the present case deals only with sexual orientation and has nothing to do with gender. He made it clear that sexual orientation is something that a person is born with. It is not a matter of choice and therefore, there is nothing “unnatural” or “against the order of nature” about it. Attacking the term ‘order of nature’ used in the impugned provision, Rohatgi argued that it is the Victorian morals of the 1860s and that our order is much older. To emphasise his point, he also referred to Shikhandi in Mahabharata.
Even though the bench declined to widen the scope of the petition by including issues such as inheritance to same sex partners, marriage within the same sex, etc and Chief Justice Dipak Misra stated that the scope of this petition will be confined to validity of section 377, the bench seemed more or less amenable with the petitioner’s arguments and gave strong signs in favour of decriminalising the archaic provision.
Justice Chandrachud stated, “the right to privacy and protection of sexual orientation lies at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” In a big morale boost for the LGBT community, he also stated that partner can be from the same sex. This makes it clear that the bench is strongly inclined towards decriminalising the archaic law. This was further articulated when the bench said that it intended to get out of the “mess” created by the Suresh Koushal judgment. Rohatgi said that not much persuasion was required in light of the top court’s latest judgment on the issue of privacy. In the judgment, Justice Chandrachud writing on the behalf of three others along with Justice S K Kaul had ruled that the 2013 Supreme Court judgment upholding the validity of Section 377 was erroneous in nature.
With this, the Supreme Court has set a rapid pace for hearing in the matter. This gives hope to the LGBT community that section 377, which is nothing but an unnecessary remnant of ancient British morals and colonial rule in India, will be undone by the Supreme Court of India.