Much awaited verdict on constitutionality of Section 377 to be pronounced by SC today

The much awaited ruling on the legality of homosexuality will be delivered by the Supreme Court in the case of Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors.(SLP (c) 15436/2009) today. The verdict will be a breather for India’s gay community, human-rights activists and religious groups who are anxiously waiting for the Supreme Court panel’s verdict on the issue of decriminalization of gay sex among consenting adults.

A bunch of petitions filed by gay rights activists and political, social and religious organizations, who have opposed the Delhi High Court verdict decriminalizing homosexual behavior, will be heard by the apex court and the judgment will be pronounced in the Chief Justice's court by Justice GS Singhvi. A Division Bench comprising of Justice Singhvi and Justice Sudhansu Jyoti Mukhopadhaya heard the matter. Incidentally, today is Justice Singhvi's last day in the office. A new set of judges would have to take up the issue if no decision is made. This verdict will have substantial significances on the shaping of criminal jurisprudence of the country.

The petitioner - Naz Foundation (India) Trust argued that the classification created by Section 377, which makes no distinction between consensual and non-consensual sex, is invalid and therefore violative of Article 14 of the Constitution. Section 377 violates Article 15(1) of the Constitution, as prohibition of discrimination on the ground of ‘sex' inherently includes prohibition of discrimination on the ground of ‘sexual orientation'. Section 377 violates freedom of speech and expression of MSM under Article 19(1) (a) and also the freedoms of assembly, association and movement of MSM under Articles 19 (1) (b) – (d) of the Constitution of India. The main argument of the Government was on the question of Public health. Department for AIDS Control (NACO), a department within the Ministry of Health, deposed by affidavit that Section 377 does block HIV prevention and care interventions with MSM and pushes HIV underground. The Home Ministry however maintained that homosexuality spreads HIV. Therefore, in order to prevent HIV from spreading it is important to retain Section 377 as it acts as a deterrent to commit the crime of homosexual sex. There can be no privacy to commit a crime and further the right to privacy can be infringed to preserve health, decency and morality. Section 377 applies to all people and is not discriminatory against MSM and therefore not violative of Article 14. Section 377 does not infringe freedoms of speech and expression or assembly, association and movement under Article 19(1) and Section 377 does not violate the equality clause under Article 15(1) as the prohibited ground of discrimination ‘sex' does not include ‘sexual orientation.'

The verdict, which will decide the constitutional validity of Section 377 of the Indian Penal Code and accordingly the legality of homosexuality, will bring to an end the 12-year legal battle which started in the Delhi High Court in 2001. In 2001, Naz Foundation a Delhi-based Trust, an HIV-focused outreach group, filed a petition in the Delhi High Court challenging the constitutional validity of Section 377 of the IPC. In 2003, an affidavit was filed by the Government of India in the high court defending Section 377 on the ground that homosexuality is not approved by the Indian society. On September 2, 2004, a Division Bench of the Delhi high court comprising Chief Justice BC Patel and Justice BD Ahmed dismissed the petition stating that there was no cause of action in favor of the petitioner and that such a petition cannot be entertained to examine the academic challenge to the constitutionality of the legislation, which was challenged in 2006 by the petitioner in the Supreme Court. On February 2, 2006, a Division Bench comprising of Justices YK Sabharwal and PP Naolekar of the Supreme Court set aside the dismissal order of the Delhi High Court and remanded the matter back to the high court as it was of the opinion that the matter needed consideration and was not of a nature which could have been dismissed on the ground as done by the High Court.

On July 2, 2009, a Division Bench of the Delhi High Court consisting of the then Chief Justice AP Shah and Justice S Muralidhar declared Section 377 as unconstitutional  and held that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 of IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' the court meant everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. Further, on July 7, 2009, a Special Leave Petition was filed by Suresh Kumar Koushal in the Supreme Court challenging the Delhi High Court verdict. In fact, between 2009 and 2011, besides filing intervention petitions by those supporting the High Court verdict, fifteen other SLPs were filed challenging the judgment of the Delhi High Court, before the Supreme Court .

February 13, 2012 to March 27, 2012 witnessed the final hearing before the Division Bench of the Supreme Court consisting of Justices GS Singhvi and SJ Mukhopadhaya. The Supreme Court reserved the matter for hearing on March 27, 2012. During this span of time, people and organizations from different fields have expressed their support for or against the landmark verdict. In February this year, the Supreme Court had dismissed a petition to make armed forces a party to the petitions supporting and opposing the Delhi High Court's ruling. Lawyer Anand Grover, who represents the NGO Naz Foundation, considering that senior judge on the two-judge panel weighing whether homosexuality should be decriminalized is set to retire today, said that it is very doubtful that the bench would not issue a ruling.

The various petitioners in the case are Delhi Commission for Protection Child Rights, Suresh Kumar Koushal an astrologer, Krantikari Manuvadi Morcha, Trust Gods Ministry, B P Singhal, Apostolic Churches Alliance and Utkal Christian Foundation, All India Muslim Personal Board, S K Tizarawala a representative of Baba Ramdev, Petitioner in person from Joint Action Council Purshottaman Mulloli and petitioner in person Ram Murti. The respondent parties are parents of LGBT persons, Naz Foundation, Voices Against 377, Shyam Benegal, Nivedita Menon and other academics, Shekhar Seshadri and other mental health professionals and other law academics. The parties for the state are Union of India, Home Ministry, and State of Delhi.

Soon after the ruling, religious groups of different designations had appealed to the Supreme Court that the court should take into account religious sentiments and criminalize homosexuality.

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