Section 377: Apex court reserves verdict on consensual same sex relations

The Supreme Court today reserved its verdict on a clutch of pleas challenging the constitutional validity of section 377 which criminalises consensual same sex relations, effectively criminalising homosexuality.

A five-judge constitution bench headed by Chief Justice Dipak Misra concluded hearing arguments on the contentious issue, after detailed hearings spread over four days, which had commenced on July 10.

The bench, also comprising Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, asked the parties to file written submissions in support of their claims by July 20.

The verdict is likely to be pronounced before October 2 this year, as Justice Misra would be retiring as CJI on that day.

Section 377 refers to 'unnatural offences' and says 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 10 years, and shall also be liable to pay a fine.

The apex court heard the writ petitions filed by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath, Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.

The writ petitioners in the current case have sought decriminalisation of consensual sex between two consenting adults by declaring this unconstitutional under Section 377.

The issue of section 377 was first raised by an NGO, Naaz Foundation, which had in 2001 approached the Delhi High Court which had decriminalised sex between consenting adults of the same gender by holding the penal provision as "illegal".

This 2009 judgement of the high court was overturned in 2013 by the apex court which had also dismissed the review plea against which the curative petitions were filed which are pending.

The apex court had commenced the hearing on the fresh writ petitions challenging re-criminalisation of consensual gay sex between two adults, rejecting the Centre's plea seeking postponement of the proceedings by four weeks. The Constitution Bench also heard arguments by the original intervenors and petitioners, including Naz Foundation, Voices Against 377 and Suresh Kumar Koushal.

It had in 2013 restored the criminality of consensual same sex relations between adults, regardless of consent, after the Delhi High Court' had decriminalised it in 2009.

The writ petitions were opposed by Apostolic Alliance of Churches and Utkal Christian Association and some other NGOs and individuals including Suresh Kumar Koushal.

Koushal had also challenged the 2009 verdict of the high court in the apex court which had restored criminalisation of same sex relations under Section 377 of IPC.

Chronology of events on the issue of section 377 of the IPC

The first petition to do away with the penal provision which criminalises consensual sexual relations between two consenting adults of same sex was filed in the Delhi High Court in 2001.

• 2001: NGO Naz Foundation files PIL in Delhi High Court seeking decriminalisation of same sex relations among consenting adults.
• Sep 2004: HC dismisses the PIL; Naz Foundation files review petition.
• Nov 3: HC dismisses review petition.
• Dec: Naz Foundation approaches SC against HC order.
• Apr 3, 2006: SC remands the case back to HC, directs it to reconsider the matter on merit.
• Oct 4: HC allows senior BJP leader BP Singhal's plea, opposing decriminalising of same sex relations among consenting adults under Section 377, to be impleaded in the case.
• Sep 18, 2008: Centre seeks more time to take a stand on the issue after contradictory stand between Home and Health ministries over decriminalisation of consensual same sex relations. HC refuses the plea and final arguments in the case begin.
• Sep 25: Naz Foundation and intervenors Voices Against 377 contend that the government cannot infringe upon their fundamental right to equality by decriminalising consensual same sex relations on the ground of morality.
• Sep 26: HC pulls up Centre for speaking in two voices on homosexuality law in view of contradictory affidavits filed by Health and Home Ministries.
• Sep 26: The Centre says same sex relations are immoral and a reflection of a perverse mind and decriminalisation would lead to moral degradation of society.
• Oct 15: HC pulls up the Centre for relying on religious texts to justify ban on consensual same sex relations and asks it to come up with scientific reports to justify it.
• Nov: Govt in its written submission before HC says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
• Nov 7, 2008: HC reserves verdict on pleas filed by Naz Foundation, Voices Against 377 and other intervenors seeking decriminalisation of homosexual acts.
• Jul 2, 2009: HC allows plea of Naz Foundation and legalises sexual activity among consenting adults of same sex.
• Jul 9, 2009: Delhi astrologer suresh Kumar Koushal challenges HC verdict in SC.

Several other pleas challenging the judgment also filed

• Feb 15, 2012: SC begins final day-to-day hearing in the case.
• Dec 11, 2013: SC sets aside 2009 Delhi HC order which had decriminalised consensual same sex relations under Section 377.
• Dec 20: Centre files review petition in SC seeking re-examination of its verdict.
• Dec 24: Naz Foundation, Voices Against 377 and other intervenors file review petition in SC seeking re-examination of its verdict.
• Jan 28, 2014: SC refuses to review its verdict recriminalising consensual same sex relations, dismisses pleas of Centre, activists.
• Apr 3: SC agrees to consider an open court hearing on curative petitions filed by Naz Foundation, Voices Against 377 and other intervenors against its verdict criminalising consensual same sex relations.
• Feb 2, 2016: SC refers curative pleas on decriminalisation of consensual same sex relations under Section 377 to five-judge bench.
• June 29, 2016: SC refers the plea filed by celebrities including dancer Navtej S Johar, chef Ritu Dalmia and hotelier Aman Nath, for quashing of section 377 of the IPC, to a bench already seized of the matter.
• Aug 24, 2017: SC declares right to privacy a fundamental right under the Constitution, also observes that "sexual orientation is an essential attribute of privacy".
• Jan 8, 2018: SC agrees to reconsider its 2013 decision and refers to a larger bench the plea challenging 377 of the IPC. Later, 20 former and current students of the IITs join the fight against section 377 of IPC.
• Jul 10: SC begins hearing on the fresh pleas.
• Jul 17: SC reserves verdict on the pleas challenging the constitutional validity of section 377 of IPC.

Inputs by NH Web Desk

This article was updated at 6.09 pm on July 17, 2018