The reading down of IPC Section 377, which criminalises ‘voluntary carnal intercourse’ as against the order of nature, appears to be imminent. The Supreme Court on Monday ordered that its 2013 verdict in the Suresh Kumar Koushal vs Naz Foundation case be re-examined. In that judgement, the court had upheld the constitutional validity of Section 377, which effectively bars sex between consenting homosexual adults (and some sexual acts between consenting heterosexual adults).
The section had earlier been read down by the Delhi High Court in 2009. The Naz Foundation’s curative petition challenging the 2013 verdict is still pending and is to be heard by a Constitution bench albeit by strict standards laid down on curative petitions. But Monday’s order was in response to a writ petition, Navtej Johar vs Union of India, filed in 2016 under Article 32 by five LGBTQ individuals who argued that their fundamental rights have been infringed upon by Section 377.
The SC’s latest order, however, is supported by two significant judgments. The first, in the NALSA vs Union of India case dealing with the rights of transgender persons, noted in 2014, “Each person’s self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom.”
The second is the August 2017 judgement on privacy which noted that privacy covered sexual orientation and even questioned the Koushal verdict. Experts have said that in the light of these two judgments it was only a matter of time before Section 377 was decriminalised.
The Koushal verdict was a gross injustice meted out to a globally marginalised community and on grounds that have rightly been described as “majoritarian”. While, the reading down of Section 377 alone will not allow LGBTQ Indians to live freely as the Constitution assures its citizens, it will no doubt nudge the needle further towards social change and acceptance which is — globally and nationally — long past due.