On Tuesday, a bench consisting of Justice Rohinton Nariman, Justice Indu Malhotra, Justice AM Khanwilkar Justice DY Chandrachud and Chief Justice Dipak Misra began hearing a set of petitions, filed in order to challenge Section 377 of the Indian Penal Code.
This section of the IPC is intended to combat “unnatural offences,” ensuring that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with 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.”
It becomes apparent section 377, holds the crux of not only prohibiting homosexuality but also criminalising any instances that get reported. Furthermore, such a law was first imposed by the British in 1860, which believed that the primary reason to ban homosexuality, was because it was against the “order of nature.” What causes most of the debate and outrage today, is the question of whether or not such a law falls in line with our expectations of a pluralistic nation. What makes the day significant, is the fact that this law has been repeatedly revisited over the last decade.
Back in 2009, homosexuality had been decriminalised by the Delhi High Court, which said in its 105-page judgement that, “As it stands, Section 377 denies a gay person a right to full personhood which is implicit in the notion of life under Article 21 of the Constitution.”
However, in December 2012, the Supreme Court decided to reverse the decision. The thrust of the decision was based on the suggestion that a “miniscule fraction of the country’s population constitute LGBT” as it claimed that ‘in over 150 years less than 200 people were prosecuted for committing an offence under the section’.
It is also well worth noting that the Supreme Court of India decided to hold the Right to Privacy as a fundamental right in August 2017, calling the right to privacy and sexual orientation- “the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.” The mentioned verdict directly clashes with the earlier judgement and therefore might hold significance today in Court.
The Supreme court revisiting Article 377 would imply a thorough reconsideration of what it terms an ‘unnatural offence’, and while bestiality needs a law criminalising it, the Court’s refusal to delay the hearing concerning homosexual acts means they will take a strong stance on the infringement upon the right of several stakeholders.
While the nation awaits the court’s judgement, it is safe to say that this will go down as a truly historic day in the Indian society.
