Laws enforcing sexual morality may cause misery of a special degree[i]. Eliminating such anachronistic laws is primal for the functioning of a liberalistic egalitarian democracy. September 6 marked the biennial anniversary of the landmark judgment by the Supreme Court in which consensual sex of adults of the same gender was struck down as a criminal offence under section 377 of the Indian Penal Code.

The triumphant end of this lengthy legal battle had brought exhilarating joy among the LGBTQ community who were fighting for years against suppression and also for the freedom to express their feelings for their partner of the same gender. Vicious tales of blackmail, extortion and violence faced by the queer community from the police across the nation and other evil intended people[ii] were not something unheard of in the country but now with the abolishment of the draconian law those would become the horrors of past hurled into the dustbin of history.

The first petition challenging the constitutionality of section 377 was filed in 1994. Since then the journey has been long and tedious but the result has been imperative as it could pave way to a plethora of civil rights in our country. The tide has certainly changed for the LGBTQ community since the verdict and the protracted grapple of eminent activists and others should be perceived to fathom the magnitude of the triumph.

Sowing The Seeds

In 1994 Ms. Kiran Bedi, I.G. Prisons had made a shocking statement that condoms will not be supplied to the inmates of Tihar jail[iii]. The authority's reasoning for this brutish decision was that it encourages homosexuality even though the fact that homosexuality is rampant amongst prisoners is acknowledged by the authorities but according to them since it's a crime under section 377 of IPC, distributing condoms will mean acceptance of a crime and aiding that crime.

A collective named AIDS BhedbhavVirodhiAndolan popularly known as ABVA had filed a civil writ petition before the Delhi High Court in which Lawyers Shobha Aggarwal, founding member of ABVA and S. Muralidhar appeared on behalf of ABVA and they argued that this decision would result in wide spread of HIV infection among the inmates.

They contended that section 377 of IPC is obsolete and thus must be struck down for being unconstitutional & violative of fundamental rights of Indian citizens as it discriminates citizens purely on the basis of their sexual orientation. The petitioners supplicated based on Amnesty report[iv], which took a positive stand on homosexuality and Kinsey report[v] which had survey results stating the prevalence of gays and lesbians in various parts of the world. Thus, not legalizing homosexuality reveals bias, ignorance and lack of tolerance of Indian Judiciary towards sexual minorities.

They prayed to the court to direct the respondents to immediately make condoms available at the dispensary in Tihar Jail for the proper implementation of the government's National AIDS control Program. Despite long-running efforts to mobilize support, the petitioners could only garner the support of two NGOs Mumbai based HUMSAFAR and Kolkata based SANGINI[vi]. All the prayers of petitioners fell on deaf ears as the petition was eventually dismissed in 2001. The verdict was extremely disappointing.

Ephemeral Euphoria

In the year 2001, Naz Foundation, a Delhi based NGO that works on HIV/AIDS and sexual health filed a public interest litigation (PIL) in the Delhi high court, challenging the constitutionality of section 377 and calling for the legalization of homosexuality. Unfortunately, in 2003 the petition was dismissed by the Delhi High Court stating that the petitioners had no locus standi in the matter. A review petition filed by the Naz Foundation was also dismissed by the Delhi High Court.

The Naz foundation then preferred an appeal to the Supreme Court and the apex court in February 2006 ruled that the Delhi High Court should reconsider this case on its merits. Thus, the case was placed before the Division Bench of Delhi High Court comprising of Chief Justice Ajit and Prakash Shah and Justice S. Muralidhar.

The petitioners by citing Jayalakshmi v. State of Tamil Nadu [vii] drew the attention of the court to custodial tortures of people belonging to the queer community by the police across the nation to state that as long as section 377 exists in its current form there will always be police abuse, detaining and questioning, extortion, harassment, forced sex and payment of hush money for the queers in India.

Petitioners pointed out that the existence section 377 dampens the progress to eradicate the stigma associated with sexual minorities in our country and considering the fact that the fields of psychiatry and psychology no longer treat homosexuality as a disease and regard sexual orientation to be a deeply held, core part of the identities of individuals. A rather peculiar feature of this case is that completely contradictory affidavits were filed by two wings of the government.

While the Ministry of Home Affairs had filed an affidavit against decriminalization of homosexuality the National AIDS Control Organization, a division of the Ministry of Health and Family Welfare had filed an affidavit stating that the enforcement of Section 377 violates LGBT rights. There was an intervention in the case by a coalition formed between NGOs and progressive groups based in Delhi called Voices against 377, they argues that adult consensual sex should be excluded from section 377.

The honorable bench held that criminalization of consensual gay sex violated the fundamental rights of a person to dignity and privacy within the right to life and liberty guaranteed by Article 21. The court applied the tests laid down by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar [viii] in considering the violation of Article 14 and clearly stated that Section 377 offends the guarantee of equality enshrined in Article 14 since it creates an unreasonable classification and targets homosexuals as a class.

The court interpreted the term ‘sex' in article 15 of the Indian Constitution to not only to merely denote the gender of the person but to be inclusive of ‘sexual orientation' as well. The judgement did reflect a sense of conscience and empathy towards the marginalized sexual minorities hitherto unseen.

There was a sense of poetic justice in the fact that the verdict was delivered on 2nd of July,2009 exactly on the 10th anniversary of the first pride parade in India and Justice S. Muralidhar, who was a part of the division bench was actually the same lawyer who fought for the petitioner in Aids Bhedbhav Virodhi Andolan (ABVA) v. Union of India [ix] Not everyone was happy with the judgment. Many including politicians had expressed how disgruntled they were with the verdict.

Egregious Verdict

The joy was however short lived for the umbrella community as in the year 2009 itself Suresh Kumar Koushal, a Delhi-based astrologer, was extremely disappointed with the verdict of the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi[x]thus, he challenged the Delhi high court's decision in the Supreme Court.

He pleaded that the courts in our country has the moral responsibility and duty in protecting cultural values of Indian society. The petitioners argued that Naz Foundation had not placed any tangible material before the High Court to show that Section 377 had been used for prosecution of homosexuals as a class and went on to state that the few affidavits and unverified reports of some NGOs relied upon by the respondents of this case could not supply basis for recording a finding that homosexuals were being singled out for a discriminatory treatment.

The petitioners relied heavily on the judgements of the apex court in Southern Petrochemical Industries v. Electricity Inspector[xi], Tamil Nadu Electricity Board v. Status Spinning Mills [xii] and Seema Silk and Sarees v. Directorate of Enforcement [xiii] to state that the High Court was wrong in ruling that section 377 is violative of Articles 14 and 15 of the Constitution solely based on the reports prepared by the academicians.

Moving on this perception the petitioner went on to state that the Indian social structure and the institution of marriage will be detrimentally affected and young persons will be tempted towards homosexual activities if the Supreme Court upholds the decision of the High Court. The respondents meanwhile relied on State of MP v. Baldeo Prasad [xiv] to make the argument that Section 377 is impermissibly vague and that the criminalization of homosexuality condemns in perpetuity, a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.

After extensive arguments by all the parties in which, the petitioner reiterated that section 377 is gender neutral and thus the question of discrimination doesn't arise and that the section merely defines a crime and decriminalizing it goes against the public morality and popular opinion. The respondents countered that by stating that public morality or popular opinion should not be the ground for violation of fundamental rights guaranteed in Article 21 of The Indian Constitution.

The verdict by the Division bench was a huge blow to LGBTQ community as the apex court overturned the Delhi High Court's judgement by stating that section 377 does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the High Court is legally unsustainable. The Supreme Court stated that the High Court had extensively relied upon the judgments of other jurisdictions albeit, the fact that these judgments shed considerable light on multiple aspects of LGBTQ rights and were informative in relation to the deplorable plight of sexual minorities.

The apex court by relying on Jagmohan Singh v. State of U.P [xv] held that judgments of other jurisdictions cannot be applied blindfolded for determining the constitutionality of the law enacted by the Indian legislature. Strangely the apex court stated that the legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.

The Central Government had filed a review petition stating that judgement by the Supreme Court contradicts the well-established principles of law laid down by the apex Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution. Unfortunately, the Supreme Court dismissed the review petition. The re-criminalization of gay sex in India came under fire from various eminent leaders from all corners of the world. The then UN secretary general, Ban Ki Moon condemned this by clamoring for the need for equality and opposed any discrimination against lesbians, gays and bisexuals.

Glimmer Of Hope

In 2017 a nine-judge supreme court bench, in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors [xvi] popularly known as the Aadhaar case, had to determine the constitutionality of the Aadhar project and whether it breaches right to privacy of the citizens. Although, the petition was dismissed the Bench unanimously ruled that privacy was a fundamental right.

This verdict gave a glimmer of hope to LGBTQ community as the court also stated that sexual orientation is an essential attribute of privacy and discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.

The court held that equality demands the sexual orientation of each individual in society to be protected on an even platform and the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. By bringing protection of sexual orientation under the ambit of the golden triangle of Indian Constitution, the Supreme Court enunciated the paramount importance of underpinning LGBTQ rights.

It should be noted that the Supreme Court took a steady deviation from the majoritarian view it took in Suresh Kumar Koushal vs Naz Foundation [xvii] and held that popular acceptance cannot be the basis to disregard rights. This judgement also paved way to the abolishment of the provisions pertaining to crime of Adultery under section 497 of Indian Penal Code in Joseph Shine v. Union of India [xviii]

Tardy Justice

In June 2016 renowned Bharatanatyam dancer, Navtej Singh Johar filed a writ petition in the Supreme Court challenging the constitutionality of section 377. Acclaimed chef RituDalmia and hotelier AmanNath also joined the fight and after the verdict in K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors [xix] hotelier Kesav Suri also joined the petitioners.

By July 2018 a five-judge bench of the Supreme Court, including Chief Justice DipakMisra, began hearing the petitions. The petitioners contended that in Suresh Kumar Koushal v. Naz Foundation[xx] the apex court had been guided by social morality leaning on majoritarian perception whereas the issue, in actuality, needed to be debated upon in the backdrop of constitutional morality.

The petitioners referred to the decision in Mosley v. News Group Newspapers Ltd.[xxi] to highlight the emphasis for individuals' freedom to conduct his or her sex life and personal relationships as he or she wishes, subject to the permitted exceptions, countervails public interest. The petitioners supplicated that privacy of the individual having been put on such a high pedestal and sexual orientation having been emphasized in National Legal Services Authority v. Union of India [xxii], Section 377 IPC cannot be construed as a reasonable restriction as that would have the potentiality to destroy the individual autonomy and sexual orientation.

To bolster the argument that LGTBQ persons should not be penalized simply for choosing a same sex partner, for the constitutional guarantee of choice of partner extends to the LGBT persons as well, the petitioners relied on Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others [xxiii] and Common Cause (A Registered Society) v. Union of India and another [xxiv] wherein it was held that the right to life and liberty, as envisaged under Article 21, is meaningless unless it encompasses within its sphere individual dignity and that right to dignity includes the right to carry such functions and activities as would constitute the meaningful expression of the human self.

The petitioners further contended that Section 377 was violative of Article 14 of the Constitution as the said Section is vague in the sense that carnal intercourse against the order of nature was neither defined in the Section nor in the IPC or, for that matter in any other law.

As per the petitioners, there was no intelligible differentia or reasonable classification between natural and unnatural sex as long as it was consensual. In view of the decision of the Supreme Court in Anuj Garg and others v. Hotel Association of India and others [xxv] which lays down the principle that classification which may have been treated as valid at the time of its adoption may cease to be so on account of changing social norms.

According to the petitioners Section 377 was manifestly arbitrary and over-broad and for the said purpose, immense inspiration was drawn from the principles stated in ShayaraBano v. Union of India and others [xxvi]. The petitioners further supplicated that making consensual relationship a crime on the ground that it is against the order of nature suffers from manifest arbitrariness at the fulcrum.

The central government filed an affidavit leaving the decision on the section's constitutionality to the court's wisdom. There were many intervenors as respondents and one such respondent of the case contended that to prohibit a type of conduct which a particular society considers worthy of condemnation by criminal sanctions is deeply influenced by the values governing that society and it, therefore, varies from one country to another and one period of history to another.

Further, it was contended by a respondent that persons indulging in unnatural sexual acts which have been made punishable under Section 377 IPC are more susceptible and vulnerable to contracting HIV/AIDS and the percentage of prevalence of AIDS in homosexuals is much greater than heterosexuals and that the right to privacy may not be extended in order to enable people to indulge in unnatural offences and thereby contact AIDS.

It was also the case of the respondents that if Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade. According to another respondent the argument of the petitioners that consensual acts of adults in private have been decriminalized in many parts of the world and, therefore, it deserves to be decriminalized in India as well does not hold good for several reasons inasmuch as the political, economic and cultural heritage of those countries are very different from India which is a multicultural and multi-linguistic country.

The attention of Court was drawn to the case of Fazal RabC houdhary v. State of Bihar [xxvii] wherein this Court held that the offence under Section 377 IPC implies sexual perversity. Furthermore, it was supplicated that there should not be identical transplantation of Western ideology in our country which has also been a matter of concern for this Court in Jagmohan Singh v. State of U.P [xxviii].

The respondents cited the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and others[xxix], to stress upon the fact that the interest of a citizen or a section of the society, howsoever important, is secondary to the interest of the country or community as a whole and while judging the reasonability of restrictions imposed on fundamental rights, due consideration must also be given to the Directive Principles stated in Part IV of the constitution.

On 6 September 2018, the court unanimously scrapped the part of section 377 which criminalized consensual sexual conduct between adults of the same sex. Chief Justice DipakMisra described section 377 as irrational, indefensible and manifestly arbitrary [xxx].

Justice R.F. Nariman categorically stated that persons who are homosexual have a fundamental right to live with dignity, which, in the larger framework of the Preamble of India, will assure the cardinal constitutional value of fraternity. The Judge further declared that such groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.

According to Justice Chandrachud human Dignity ensures the sanctity of life which makes human dignity an essential element of a meaningful existence and thus a life of dignity comprehends all stages of living including the final stage which leads to the end of life.

The only woman on the bench, Justice Indu Malhotra summed up her judicial opinion with the words 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. The members of this community were compelled to live a life full of fear of reprisal and persecution.[xxxi]

As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom these were the words of Justice Kennedy while delivering his judgement in Lawrence vs Texas[xxxii]. The judgement of the Supreme Court was dubbed as the victory of love it was also a tight slap on the face for all the people who had differentiated LGBTQ community from others.

In the past many people belonging to sexual minorities had committed suicide because of the stigma and humiliation faced while coming out but the continuation of such tragic incidents will become unlikely after the verdict. The message to vanquish prejudice and embrace equal rights was loud and clear.

Many LGBTQ activists believe that the attainment of social legitimacy will help in depreciating homophobia among Indian society. The battle for equality for the queer community could go on for years and there are many hindrances to completely avert Social exclusion, identity seclusion and isolation from the social mainstream but this verdict will forever remain as a cornerstone.

End-Notes:

1. H.L.A. Hart in Law, Liberty and Morality
2. People's Union for Civil Liberties (PUCL) Report on Rampant violation of rights of Sexual Minorities, p.14 (2000)
3. KAI FRIESE, Tihar jail bans condoms, India Today May 31, 1994 p 3
4. Amnesty International Report 1987 p (293-296)
5. Kinsey Report Sexual Behavior 1948 Table 147, p. 651
6. Sanjukta Bose, A BRIEF HISTORY OF THE GAY RIGHTS MOVEMENT IN INDIA p 2
7. (2007) 4 MLJ 849
8. AIR 1952 SC 75: [1952] SCR 284
9. Civil Writ Petition 1784 Of 1994 Delhi High Court
10. (2009) DLT 277
11. (2007) 5 SCC 447
12. 2008 (9) SCR 870
13. (2008) 5 SCC 580
14. (1961) 1 SCR 970
15. (1973) 1 SCC 20
16. (2017) 10 SCC 1
17. (2014) 1 SCC 1
18. (2019) 3 SCC 39
19. Supra note 16
20. Supra note 17
21. [2008] EWHC 1777 (QB)
22. (2014) 5 SCC 438
23. 1981) 1 SCC 608
24. (2018) 5 SCC 1
25. (2008) 3 SCC 1
26. (2017) 9 SCC 1
27. (1983) 3 SCC 9
28. (1982) 3 SCC 9
29. 2005 (8) SCC 534
30. (2018) 10 SCC 1
31. Supra note 30
32. 2003 U.S. LEXIS 5013