New Delhi: A five-judge Constitution Bench of the Supreme Court on Thursday decriminalised, albeit partially, Section 377 of the Indian Penal Code (IPC). The bench headed by Chief Justice Dipak Misra and comprising of Justices RF Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra said that while they had four different judgements, they were unanimous in the decision.
Section 377 of the IPC deals with unnatural offences and holds 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.
Homosexuality was first criminalised by the Britishers in 1860, which found sexual activities between members of the same sex against the “order of nature.” Let us take a look at the timeline of events from 2001 to date when the landmark judgement was pronounced.
2001: Naz Foundation, an NGO fighting for gay rights filed PIL in Delhi High Court seeking legalisation of gay sex among consenting adults.
2004: High Court (HC) dismissed the PIL seeking decriminalisation of gay sex. Thereafter, gay rights activists filed a review petition. HC dismissed the review plea. Gay rights activists approached the apex court against the order of the HC.
2006: Supreme Court (SC) directed the HC to reconsider the matter on merit and remanded the case back to HC. The HC then allowed senior BJP leader BP Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.
2008: The HC refused the plea and pulled up the Centre for having conflicting views on homosexuality after contradictory affidavits were filed by Health and Home ministries. Centre said that gay sex is immoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society. HC also asked Centre to come up with scientific reports to justify the ban on gay sex.
The government in a written statement before the HC said that judiciary should refrain from interfering in the issue as it is basically for Parliament to decide. HC reserved its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.
2009: In July 2009, the Delhi High Court had decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India. A bench comprising then of Chief Justice AP Shah and Justice S Murlidhar had pronounced the verdict back then.
2012: The SC overturned the HC’s decision. A two-judge bench, comprising Justice GS Singhvi and Justice SJ Mukhopadhaya observed that the HC had overlooked the fact that a minuscule fraction of the country’s population constituted the LGBTQ community. It argued that in the last 150 years, less than 200 people were prosecuted for this offence. It is then that the National Crime Records Bureau (NCRB) began collecting data related to offences under Section 377.
2014: In a written reply to Lok Sabha, Minister of State (Home Affairs) Kiren Rijiju had said that the matter is sub-judice before the SC. Rijiju added that a decision regarding Section 377 of IPC can be taken only after pronouncement of judgement by the SC.
2015: In 2015, the Lok Sabha that had BJP as the majority voted against the introduction of a private member’s Bill to decriminalise homosexuality.
2016: Five petitions were filed by S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur.
2017: The SC in August 2017 held Right to Privacy as a fundamental right. It also observed that sexual orientation is an essential attribute of privacy. It said that the right to privacy and the protection of sexual orientation lay at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.
2018: A five-judge Constitutional bench, led by Chief Justice of India Dipak Misra and comprising Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra, began hearing petitions challenging Section 377. On September 6, the SC pronounced its landmark judgement and vindicated the Section 377 that earlier criminalised gay sex.