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declaring that Section ultra vires Articles 14, 15 and
The Timeline
21.
1861: Chapter XVI, Section 377 of the IPC criminalises
 High Court has extensively relied upon the judgments homosexual intercourse
of other jurisdictions which may be much informative
1990: Bombay Dost, India’s first registered LGBT
but that they cannot be applied blindfolded for magazine, launched by Ashok Row Kavi
deciding the constitutionality of the law enacted by
1999: India’s first pride parade, ‘Friendship Walk’, held
the Indian legislature. in Calcutta, had 15 participants
 After the adoption of the Indian Penal Code in 1950, 30 Dec 2001: NAZ Foundation files a petition challenging
amendments were made to the statute. Even Law Section 377 in Delhi High Court
Commission in its 172nd report “specifically 2009: The Delhi High Court says Section 377 is in
recommended deletion of Section 377 of the IPC, and direct violation of fundamental rights
the issue has repeatedly come up for debate. The most 2012: Temple town Madurai in Tamil Nadu holds
recent, made in 2013, specifically deals with sexual Genderqueer Pride Parade
offences, a category to which Section 377 belongs, but 2013: Supreme Court upturns the Delhi HC order, says
it has not deleted this provision from the statute. gay sex is a crime
Legislature has chosen not to amend the law or revisit
it.
work with LGBTQ (lesbians, gays, bisexuals,
 Naz Foundation has miserably failed to furnish
transgender, queer) communities vulnerable to police
particulars of incidents of discriminatory attitude
harassment for ‘promoting’ illegality.
exhibited by the state agencies towards sexual
 Social stigma could force MSMs to deny their sexual
minorities. It has also not furnished the particulars of
behaviour, marry women and have sex with female
the cases involving harassment of and assault on
partners putting them at the risk of HIV/AIDS.
sexual minorities by the public and public
The decision by the Supreme Court to review its 2013
authorities.
judgment setting aside the Delhi High Court’s verdict
The order to revisit the 2013 ruling came on a 2016
scrapping Section 377 is welcome. It is time that Indian
petition filed by Navtej Singh Johar, a Bharatnatyam dancer
Penal Code reflects the diverse and progressive nation
honoured with the Sangeet Natak Akademi award, journalist
that India is. Section 377 infringes the fundamental right to
Sunil Mehra, restaurateur Ritu Dalmia, hotelier Aman Nath
life and personal liberty guaranteed by the Constitution
of the Neemrana chain, and Ayesha Kapur, a psychology
under Article 21. It is also an abrogation of right to privacy
graduate.
recognised by the apex court as a fundamental freedom
In August 2017, the apex court, in its landmark judgment
guaranteed by the Constitution. Those opposing the
on the privacy issue, said that “sexual orientation is an
scrapping of Section 377 argue about the moral and
essential attribute of privacy”. It said that the “right to
religious unacceptability of sex between persons of the
privacy and the protection of sexual orientation lie at the
same sex. The issue here is not about social acceptability
core of the fundamental rights guaranteed by Articles 14,
of homosexuals but their standing before the law.
15 and 21 of the Constitution”.
Determining morality of sexual conduct between
Why a rethink of Suresh Kumar Kaushal and Naz
consenting adults is not within the purview of the court.
Foundation Judgment is needed?
Even if a sizeable section of the population is of the view
 The decision has enthroned medieval prejudice
that sexual acts that currently fall within the purview of
and dealt a body blow to liberal values and human
rights. Section 377 as immoral, it is not sufficient cause for the
 Changes in law have come about both by legislation court to uphold a law that criminalises the practice. The
and through the judiciary’s constitutional question before the apex court is not one of morality
interpretation. The Supreme Court bench has shut the but legality. The Supreme Court must determine whether
door to the judicial route to bringing the law in line upholding a law that defines as unacceptable sexual
with fundamental human rights. conduct between consenting adults is tantamount to
 It is strange that a decision involving a major an infringement of the fundamental right of personal
constitutional issue should have been decided by a liberty guaranteed by the Constitution. It needs to
two-member bench rather than by a larger decide whether the Constitution framed and adopted
Constitutional Bench. by an independent country trumps a colonial-era penal
 The judgment would make healthcare workers who code.
146 Competition Wizard March 2018