Homosexuality and the Indian law
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Arrests under Section 377 of the IPC
How widely has Sec. 377 been used?
December 11, 2017: The Times of India
See graphic:
The year in which Homosexuality was made a crime in South Asian countries;
the year in which it was decriminalised in Nepal (and some other countries)
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From: December 11, 2017: The Times of India
How widely has Section 377 been used in India?
The convictions under this section have been negligible. While striking down the Delhi High Court order that decriminalised consensual gay sex, the Supreme Court, in its judgement dated December 11, 2013, had quoted the Union home ministry as having submitted to the Delhi High Court that: “Section 377 has been applied only on complaint of a victim and there are no instances of arbitrary use or application in situations where the terms of the section do not naturally extend to Section 377 IPC.”
However, LGBT rights activist have argued that while the section may not have been legally used, it presence is a potential source of misuse and harassment by the police.
2015: 14% were minors
Shibu Thomas, 14% of those held for gay sex last year were minors, Sep 29 2016 : The Times of India
About 14% of those arrested in 2015 under Section 377 of the IPC for unnatural sexual offences were minors, show National Crime Records Bureau data.Around 1,491 persons were arrested under Section 377, including 207 minors and 16 women, in 2015.
In 2014, for the first time, the NCRB began to record Section 377 cases, and the figures revealed that 1,148 cases were lodged that year. In 2015, 1,347 cases were registered under the offence, a 17.3% increase, and 154 juveniles were arrested. Though the figures do not give a break-up of the gender of the victims, it mentions that in 814 cases, the crimes were committed against children.The remaining crimes were committed against adults.
Section 377 says, “Whoever voluntarily has carnal intercourse against the or der 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.“
A look at the state-wise figures reveals that Uttar Pradesh at 239 reported the highest number of cases under the section. Delhi was next with 174 cases, followed by Maharashtra and Kerala with 159 each. Of the 207 children arrested last year, around 11 were aged under 12, 100 were aged between 12 and 16 and 96 between 16 and 18. Minors come under the special juvenile law which says that if convicted, they can be put in a shelter home for three years.
Court decisions
SC erred in overruling HC on gay sex: Justice Shah
The Times of India, Sep 05 2015
Pradeep Thakur
SC erred in overturning HC verdict on gay sex: Justice Shah
Former Law Commission chairman Justice A P Shah, who as chief justice of Delhi high court delivered the landmark judgment decriminalizing homosexuality by reading down Section 377 of IPC, has slammed the Supreme Court for reviving the controversial penal provisions by quashing the HC verdict. Speaking for the first time on the issue, Justice Shah told TOI that the apex court had erred in entertaining petitions from various religious organizations and in overturning the HC verdict. “It is very difficult to get a consensus from the political class. So it really should be done by the court in this case,“ he said, adding that the verdict was widely accepted by all sections of society .“What happened after the Delhi HC judgment? The then law minister said the judgment was a `brave' one, and the government itself decided not to appeal,“ Justice Shah said. Slamming the SC for quashing Delhi high court's judgment decriminalizing homosexuality by reading down Section 377 of IPC, Justice A P Shah said on Friday that it was difficult “to turn the clock back“ and hoped that a curative petition pending in the apex court may have some effect.The curative petition is the last judicial resort available to petitioners seeking review of an SC verdict, though it has been pending in the apex court since April 2014. The government made no effort after the SC verdict to bring ammendments in the law decriminalizing homosexuality .
The Delhi HC had, in a 2009 judgment, held that a person could not be discriminated on the basis of sexual orientation and the penal provision violated the funda mental rights of the LGBT (lesbian, gay , bisexual and transgender) community and was unconstitutional.
In its judgment, a bench of Justices Shah and S Muralidhar had decriminalized homosexual acts between two consenting adults in private.The verdict was opposed by religious outfits and an individual who moved the SC which quashed the HC verdict. Enacted by the British, Section 377 of IPC has been on the statute books since 1860 and provides for punishment for up to life imprisonment for “carnal intercourse against the order of the nature with any man, woman or animal“.
August 2017: Privacy is a Fundamental Right/ SC
Dhananjay Mahapatra, A Fundamental Shift On Gay Rights , August 25, 2017: The Times of India
Protecting sexual orientation, privacy lies at the core: Court
New Delhi: The Supreme Court bench provided a big boost to the LGBT community by declaring that a 2014 order by a two-judge bench had gravely erred in annulling a Delhi HC verdict decriminalising gay sex between consenting adults.
“Sexual orientation is an essential attribute of privacy .Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution,“ Justice Dhananjay Y Chandrachud, who authored the lead judgment holding privacy to be a fundamental right, said.
The nine-judge bench's order will considerable reduce the previous judgment's chilling effect on LGBT rights. It scythed through the logic in the 2014 judgment in the Suresh Kumar Koushal vs Naz Foundation case saying it was in conflict with the LGBT community's claim based on right to privacy , entrenched in right to life guaranteed under Article 21of the Constitution. This will go a long way in protecting sexual minorities from the impositions of popular or legislative majorities.
The court said the rights of LGBT persons were not a charity. “Their rights are not `socalled' 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 ,“ the judgement said while criticising the 2014 order's use of the term “so-called“ in the context of gay rights.
Stopping short of setting aside the 2014 judgment that criminalises homosexuality , the SC said, “Since the challenge to Section 377 is pending consideration before a larger bench of this court, we would leave the constitutional validity to be decided in an appropriate proceeding.“ Except this caveat, the privacy judgment recognised and respected the sexual pref erence and orientation of the LGBT community . Justice Chandrachud said on behalf of the bench, “That a minuscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders (as observed in the two-judge bench judgment) is not a sustainable basis to deny the right to privacy .
“The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities.... The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection.
“Discrete and insular minorities face grave dangers of discrimination for the simple reason that their views, beliefs or way of life does not accord with the mainstream. Yet in a democratic Constitution... their rights are as sacred as those conferred on other citizens.
“The view in Koushal judgment that the HC had erroneously relied upon international precedents `in its anxiety to protect the socalled rights of LGBT persons' is similarly , in our view, unsustainable.“
A ‘180° change’ in SC’s approach to Sec 377
From: Dhananjay Mahapatra, How SC’s Sec 377 approach took a 180° turn, January 9, 2018: The Times of India
Dhananjay Mahapatra, How SC’s Sec 377 approach took a 180° turn, January 9, 2018: The Times of India
9-Judge Bench’s Right To Privacy Judgment Set Stage For Review
The Supreme Court’s decision to review its own four-year-old verdict criminalising consensual sexual relationship in private between adults of same gender was triggered five months ago, when a nine-judge bench had ruled that the LGBTQ community members’ sexual orientation had an inseparable relationship with their fundamental right to privacy.
In the unanimous verdict declaring right to privacy as part of right to life, Justice D Y Chandrachud, who authored the main judgment for the nine-judge bench, was joined by Justice Sanjay Kishan Kaul in declaring that the SC’s twojudge bench had erred in December 2013 by upsetting the Delhi HC’s 2009 order decriminalising Section 377.
The nine-judge bench had scythed through the logic in the 2013 judgment in Suresh Kumar Koushal v NAZ Foundation saying it was in conflict with the LGBT community’s claim based on right to privacy, entrenched in right to life guaranteed under Article 21of the Constitution.
“Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21,” said Chandrachud.
He said: “That ‘a minuscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders’ (as observed in the two-judge bench judgment) is not a sustainable basis to deny the right to privacy... The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion. The test of popular acceptance does not furnish a valid basis to disregard rights which are conferred with the sanctity of constitutional protection,” he had said.
Justice Kaul had said: “I am in agreement with the view of Justice Chandrachud, who states that right of privacy cannot be denied, even if there is a minuscule fraction of the population which is affected. The majoritarian concept does not apply to constitutional rights and the courts are often called up to take what may be categorised as a non-majoritarian view, in the check and balance of power envisaged under the Constitution of India. One’s sexual orientation is undoubtedly an attribute of privacy.”
Justice Chandrachud had said: “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. 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.”
He had said: “The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy — dignity based claims of LGBT persons on this aspect.”
Five celebrities Who Convinced The SC
The Famous & Fearless 5 Who Convinced The SC, January 9, 2018: The Times of India
NAVTEJ SINGH JOHAR
A leading Bharatnatyam dancer and recipient of 2014 Sangeet Natak Academy award for ‘Creative Dance/ Choreography’. Served as Performance Director of Commonwealth Parade for the Queen’s golden jubilee celebrations in London in 2002. Set up dance training programme along with musician Justin McCarthy. Taught in Michigan University in 2010 and now teaches at Ashoka University. Co-founder and artistic director of Studio Abhyas, a centre for yoga, dance and care for stray animals and urban development in New Delhi.
SUNIL MEHRA
Noted journalist, former editor of Indian edition of Maxim magazine, Mehra had been in a committed relationship with Johar for two decades. Between 1999-2001, he directed, produced, wrote and anchored 86 episodes of ‘Centrestage’ on DD Metro and DD International. He with Johar co-founded Studio Abhyas.
RITU DALMIA
Well-known chef, author, restaurateur and TV personality, Dalmia set up ‘Diva’ chain of restaurants and her ‘Diva Italian’ has won many acclaims. Won the Woman Chef of the Year award in 2007. She has authored popular and acclaimed Italian cookbooks including ‘Italian Khana’.
AMAN NATH
Hotelier, writer and historian, Aman Nath with his late partner Francis Wacziarg were among the founding members of Indian National Trust for Art and Cultural Heritage (INTACH). Nath says he was in a committed relationship with Wacziarg for about 23 years till the latter’s death in 2014. He and his partner established acclaimed chain of Neemrana Hotels, which restored, preserved and used several historical properties. He and his partner were awarded Lifetime achievement award by the ministry of tourism in 2014. Nath has written 15 books on arts & crafts, culture and historical architecture of India.
AYESHA KAPUR
After doing a double Major from Clark University, Massachusetts, she returned to India in 1998 and worked in nascent e-commerce sector. Within a decade, she became business head but quit due to fear of her sexual orientation being discovered. Despite revealing her preference, she says she is unable to accompany or be accompanied by her committed partner to social and family occasions. Works as a consultant in food and beverages industry.
Mizo churches ‘reject’ SC’s Sec 377 ruling
September 18, 2018: The Times of India
Churches in Mizoram have “rejected” the SC’s ruling on Article 377 and said homosexuality and lesbianism should continue to be criminalised.
Mizoram Kohhran Hruaitute Committee , a conglomerate of leaders of 14 major churches in the state said it wished the apex court had not scrapped Section 377.
Supreme Court judgements
2014-2022
April 21, 2023: The Indian Express
The Supreme Court continued to hear a batch of pleas seeking legal recognition for same-sex marriages. On the second day of the hearing, the court heard arguments on the changing legal landscape on LGBTQ rights and the evolution of the right to choose one’s partner. Here are some of the key cases that trace the shift in the law over the years.
NALSA v Union of India
Months after a two-judge Bench of the Supreme Court in ‘Suresh Koushal v Union of India’ upheld the constitutional validity of Section 377 of the Indian Penal Code, another Bench in April 2014 affirmed the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution.
In ‘NALSA’, the Court agreed with virtually the same arguments it rejected in Suresh Koushal. The court upheld the right of transgender persons to decide their gender and directed the Centre and state governments to grant legal recognition to their gender identity, such as male, female or the third gender.
KS Puttaswamy v Union of India
In 2017, a nine-judge Bench of the Supreme Court unanimously recognised the right to privacy as a fundamental right under the Constitution. In doing so, the verdict overruled a “discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy” — the 2013 ‘Suresh Koushal’ ruling.
“The view in Koushal that the High Court had erroneously relied upon international precedents “in its anxiety to protect the so-called rights of LGBT persons” is…in our view, unsustainable. The expression “so-called” seems to suggest the exercise of a liberty in the garb of a right which is illusory. 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,” a concurring opinion by Justice DY Chandrachud stated.
Shafin Jahan v Union of India
The SC in March 2018 set aside a Kerala High Court judgment that annulled the marriage of a 24-year-old woman who converted to Islam and married a man of her choice. The ruling recognised the right to choose one’s partner as a facet of the fundamental right to liberty and dignity.
“…The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith…Social approval for intimate personal decisions is not the basis for recognising them,” the court had held.
Shakti Vahini v Union of India
A three-judge Bench on the SC in March 2018 issued directives to prevent honour killings at the behest of khap panchayats and protect persons who marry without the approval of the panchayats. In the ruling, the Court recognised the right to choose a life partner as a fundamental right.
“…When two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy,” the court had held.
Navtej Johar v Union of India
In August 2018, the SC heard a curative petition against the ‘Koushal’ ruling. A five-judge Constitution Bench struck down IPC Section 377 to the extent that it criminalised homosexuality. The ‘Navtej’ ruling essentially said that the LGBTQ community are equal citizens and underlined that there cannot be discrimination in law based on sexual orientation and gender.
Deepika Singh vs Central Administrative Tribunal
The SC in August last year decided in favour of a woman who was denied maternity leave for her first biological child on the ground that she had already availed the benefit for her two non-biological children. The ruling recognised “atypical” families, including queer marriages, which could not be confined in the traditional parenting roles.
“…Many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation,” Justice Chandrachud stated.
