Section 377: Historical Wrong Needs Correction

A three-judge bench is set to re-examine the constitutional validity of Section 377, that must be nullified with the changing milieu worldwide in the interest of the perpetually harassed communities of sexual minorities.

- Ashok Kumar Yadav

In the wake of the landmark ruling of the nine-judge bench of the Supreme Court elevating the ‘right to privacy’ to the level of fundamental rights, Section 377 of the Indian Penal Code, a progeny of the colonial-era Buggery Act of 1533, appears set for a total revamp. The impugned provision which criminalizes sexual activities which are “against the order of nature” is on the radar of the apex court. The judicial initiative has pumped in buoyancy among the lesbian, gay, bisexual, transgender and queer (LGBTQ) communities known for practising their own sexual preferences.

How the Supreme Courterred

With an epoch-making judgement delivered in July 2009, the Delhi High Court removed Section 377 from the statute book which was, however, ultimately reversed by the SC on December 11 2013, declaring that amending or repealing the IPC provision should be a matter better left to the wisdom of Parliament.

While adjudicating Suresh Kumar Koushal versus NAZ Foundation, the SC bench of Justices GS Singhvi and SJ Mukhopadhaya intriguingly not only validated the British-era provision but also inverted the 2009 verdict which had held Section 377 violative of Articles 14, 15 and 21 of the Constitution. A review against the 2013 decision was also dismissed and a curative petition moved thereafter is still pending in the Supreme Court.

Protector of rights

On August 24 last year, the SC while inventing the ‘right to privacy’ as yet another fundamental right also agreed to revisit its 2013 order which not only revived Section 377 but also re-criminalized gay sexual relations. Accordingly, the three-member bench headed by then Chief Justice of India T.S. Thakur issued notice to the Centre seeking its response to a writ petition filed by five members of the LGBTQ communities that had accused the police of perpetual stalking.