LAW: WHY THE INDIAN JUDGMENT IS A GAME-CHANGER
On September 6, 2018, in a landmark unanimous judgment, a five-judge bench of the Indian Supreme Court ruled that Section 377 of the Indian Penal Code does not apply to “consensual sexual acts of adults” — including same-sex relations between consenting adults. The court ruled that the law was “irrational, indefensible and manifestly arbitrary”; and that discrimination based on sexual orientation was a violation of fundamental rights, such as, autonomy, privacy, equality, dignity, and non-discrimination guaranteed under the Indian Constitution as well as international laws, including the International Covenant on Civil and Political Rights (ICCPR).
Section 377 has long been a tool of oppression and discrimination used against the Indian queer community, and the Supreme Court’s verdict marks a momentous step forward for human rights in the country and beyond.
CONTEXT AND PROCEDURAL HISTORY
Section 377 was introduced in India through the colonial Indian Penal Code (IPC) in 1860, when India was still a British colony. The intent behind the provision was clearly to criminalise individuals whose real or imputed sexual relations the colonial rulers found to be “unnatural” and undesirable. The IPC was the template for penal legislation introduced in other British colonies as well and, as a result, several countries inherited some version of section 377 in their penal codes. The United Kingdom has since decriminalised same-sex relations, yet, several former colonies, including Pakistan, continue to grapple with the impact of such laws.
The Indian Supreme Court verdict on Section 377 has implications far beyond LGBT rights
This month’s judgment is the result of a long process of litigation going back more than a decade.
In a 2009 landmark judgment, the Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi ruled that Section 377 violated the Indian Constitution in so far as it criminalised consensual sexual acts between adults, as the provision discriminated on the basis of sexual orientation and violated equality, privacy, liberty and dignity, and relevant international human rights law standards.
However, Suresh Kumar Koushal, who was not an original party to the original proceedings before the Delhi High Court was nonetheless permitted to bring proceedings against the Naz judgment to the Supreme Court. In December 2013, Koushal’s appeal resulted in India’s Supreme Court reversing the Delhi High Court’s decision and ruling that it was ultimately for the legislature to decide whether to repeal Section 377.
This led the original petitioners in the Naz case, as well as the central government, to file review petitions against the December 2013 Supreme Court decision. However, these review petitions were dismissed on January 28, 2014, with the Supreme Court holding that it saw no reason to interfere with the December 2013 judgment.
The petitioners then filed “curative petitions” before the Supreme Court, which in India are rarely granted. However, in this case, the Supreme Court granted the curative petition on February 2, 2016, and passed an order to constitute a constitution bench to hear the curative petitions.
Soon after, a series of fresh petitions contesting the constitutional validity of Section 377 were also filed, with the first petition being Navtej Singh Johar v. Union of India, which was admitted on January 8, 2018, along with five other petitions which were also admitted and joined with Johar’s petition.