What seemed like an eternal battle between believers and non-believers, a battle of unprecedented demands, and a struggle for freedom to express desired sexual orientation has finally run its course. As the honorable Supreme Court of India has decriminalized same-sex marriage, in short section 377 of the Indian Penal Code has been repealed.
While the self-confessed, proactive Great Indian Prime time media brigade gears up to debate and discuss [SHOUT] tonight, and sets the language of political discourse for this historic judgment, in the hindsight, we believe that this is a matter of subjective-righteousness entirely.
And Yes!!!! The Indian Government did just score some brownie points with this judgment heading into the 2019 General Elections.
But anyways you knew this was imminent. So let’s digress and rather dig deep into the history to know what actually the whole ruckus all about. Oh Wait!! you don’t wanna know. Well, watch this video below, as it will blow your head off…. and perhaps develop a curiosity about Section 377 and its history.
We hope it did blow your mind. So, without wasting any further time, let’s dive in….
The Buggery Act of 1533 & section 377
The controversial Section 377 is a 158-year-old colonial law on consensual gay sex which was introduced way back in 1861.
It was modelled on a 16th-century British law called the Buggery Act of 1533, which was the first such civil law that criminalised certain kinds of sexual intercourse.
This law defined ‘buggery’ as an unnatural sexual act against the will of God and man. Thus, this criminalised anal penetration, bestiality and in a broader sense of homosexuality.
The draft was prepared by Thomas Macaulay around 1838 but was only brought into effect in 1860 after the Sepoy Mutiny (First War of Independence) 1857. The Buggery Act 1533 was enacted under the reign of King Henry VIII.
Offences against the Person Act 1861
In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, but also homosexuals.
This Act is considered to be the inspiration behind Section 377 of the Indian Penal Code. In years to come, this Act would be repealed by the British and replaced by the Offences against the Person Act 1861 and finally homosexuality was decriminalised by the Sexual Offences Act 1967.
Though same-sex marriage was partially legalized in Britain in the early 1970s, it had remained illegal in India up until September 6, 2018.
Fact Check : What does the law say?
For the sake of understanding, we can say that Section 377 of Indian Penal Code is a law that makes sexual intercourse, or any non-procreative sexual act between a man and a woman illegal, punishable with up to 10 years in jail and/or a fine.
Just to be more precise, this is what the actual text from the IPC reads……….
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152[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.“
Though it doesn’t apply only to homosexuals, it is widely perceived as the anti-gay sex law. It only penalises carnal intercourse against the order of nature. This covers homosexuals and heterosexuals alike. Yet over the years this law has been used as tool to harass homosexuals and transsexuals.
Prosecution and The 2009, The 2013 Judgements
Prosecution under Section 377 only when there is documentary proof of ‘sexual intercourse against the order of nature’. This involves medical examinations right after the act, and sufficient proof beyond doubt that intercourse occurred.
Around 2008-2009 massive support was pouring in for repealment of section 377. Amidst slew of protest and peaceful demonstrations, a historic judgement was delivered on 2 July 2009, by The Delhi High Court that overturned the 150-year-old section, legalising consensual homosexual activities between adults.
The court said that the section goes against the fundamental rights of citizens while striking it down.
In the year 2013, The honourable Supreme Court of India overturned Delhi high court verdict that had set aside a law framed in 1860 and decriminalized consensual sex among adult homosexual men.
At the same time, the apex court put the ball in the government’s court, arguing that it was free to annul the law through legislation. The verdict was pronounced by justice G.S. Singhvi
The 2018 Verdict
Five years after criminalizing section 377, Supreme Court has now reconsidered its previous judgement.
This judgement was a result of series of events that lead to the culmination of strong opinions that eventually lead to the repealment of IPC Section 377.
Some of the crucial events are as follows:-
As an immediate response to the 2013 Judgement, Senior Supreme Court Advocates Rajeev Dhavan and Dushyant Dave had criticised court’s verdict declaring the IPC provision penalising gay sex as constitutional and said the two-judge bench seemed to have taken “an unwarranted view” which “requires a serious reconsideration” of the archaic law.
Dave said: “It’s quite refreshing to see a positive stand in the matter. The judgement of the apex court declaring 377 to be intra vires really requires serious reconsideration. This provision itself, on the face of it, is archaic and wholly unconstitutional. Nobody can support it under any circumstances.
“The judgement of the Supreme Court was, in fact, quite surprising, and I would say it was quite orthodox not in tune with the changing times,” he said.
Dhavan said the view taken by the judges in the 2013 verdict was clearly wrong.
“Unfortunately, the two-judge bench seems to have taken an unwarranted view on section 377 in the 2013 verdict criminalising gay sex. The view was clearly wrong. They should have sent it to a larger bench. Now let’s hope that a Constitution Bench hears it,” he said.
The privacy debate
A landmark judgment on the right to privacy by a nine-judge bench of Supreme Court in August 2017 criticised the 2013 SC judgement.
The landmark judgment by the bench which also had the then Chief Justice J S Khehar said the rights of the LGBT and sexual minorities are not “so-called” but are “real rights founded on sound constitutional doctrine”.
It called the previous judgment in the Suresh Kumar Koushal vs Naz foundation case a “discordant note” which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.
“The rights of the lesbian, gay, bisexual and transgender population cannot be construed to be ‘so-called rights’. The expression ‘so-called’ seems to suggest the exercise of a liberty in the garb of a right which is illusory,” it said about the 2013 judgment.
“This is an inappropriate construction of the privacy based claims of the LGBT population. Their rights are not ‘so-called’ but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity.
“They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination,” said a portion of the 547-page judgment.
SC leans towards modernity
The five-judge constitution bench of Chief Justice Dipak Misra, Justice Rohinton Fali Nariman, Justice A M Khanwilkar, Justice D Y Chandrachud and Justice Indu Malhotra had reserved the verdict on July 17 on the conclusion of arguments.
The tone and tenor of the hearing of the matter on July 17 – the day the verdict was reserved – saw the court telling that it was duty bound to strike down a law that is in conflict with the fundamental rights and not to leave it to majoritarian government to address it.
“It is our duty to strike a law the moment we find a law in conflict with fundamental rights. We don’t leave it to the majoritarian government, which may or may or act” given the exigencies of its vote bank politics, the constitution bench had said.
“The moment we are convinced that a law is violative of the fundamental rights we will strike it down and not relegate it to legislature,” the court had said.
The hearing saw the Constitution bench disagreeing with some of the respondents telling it that decriminalizing the same sex relationship amongst the LGBT community would have a cascading effect on other statutes including the personnel laws and the spread of dreaded diseases like HIV and AIDS.
Unimpressed by the submission, Justice Nariman had said that there would be “no cascading effect” as all such references in other statutes will get deleted.
Justice Chandrachud rejecting the contention had said that the cause of the sexually transmitted diseases was not sexual intercourse but unprotected sex.
As we have already stated above that the following judgment is indeed historic and a step towards strengthening India’s stand on the guiding principles of its constitution.
Though we also believe that this matter is of subjective-righteousness entirely, and thus, we would love to know your opinion on this topic.
Share your opinion with us in the comment section below.