On 11 December 2013, two judges of the Supreme Court of India overturned a landmark 2009 decision in which two judges of the Delhi High Court declared section 377 of the Indian Penal Code unconstitutional to the extent it makes consensual homosexual intimacy in private a criminal offence. The High Court decision was a global symbol of modern legal and constitutional analysis, in recognising that colonial-era ‘buggery’ laws violate basic human rights guaranteed to all human beings.

Section 377, introduced during British colonial rule, criminalises “carnal intercourse against the order of nature”. This has generally been interpreted to mean all forms of sexual activity other than heterosexual penile-vaginal intercourse, and like similar provisions that remain in place in more than half of Commonwealth countries it has a disproportionate impact on non-heterosexuals.

The Supreme Court reversal has been widely criticised both inside and outside India as a legally flawed decision (see statements from High Commissioner for Human Rights Navi Pillay, Executive Director of UNAIDS Michel Sidibé, former Attorney General of India Soli Sorabjee and Global Commission on HIV and the Law).  This note identifies the key issues in the case and how the Supreme Court addressed them.

Delhi High Court Decision

The Delhi High Court “read down” s. 377: the provision was held to be unconstitutional insofar as it criminalises consensual sexual conduct between adults in private, leaving the provision in place to continue criminalising non-consensual non-vaginal intercourse and intercourse with minors, thereby ensuring the rights of victims of sexual assault.

The High Court acknowledged, in line with domestic and international studies and case law, that criminal laws like s. 377 directly and disproportionately impact gay men, target not just conduct but human identity, and render all homosexual men unapprehended felons. It held that the criminalisation of consensual homosexual conduct was a violation of the following human rights guarantees in the Indian Constitution:

(a) Article 21, which guarantees the right to life and liberty. The Court located the rights to dignity, autonomy and privacy within this provision and held that these were violated by s. 377;

(b) Article 14, which guarantees equality before the law. The Court held that s. 377 created an unreasonable classification between “natural” and “non-natural” sexual acts and targeted homosexuals as a class; and

(c) Article 15, which prohibits discrimination on grounds of, among others, “sex”. The Court held that “sex” includes sexual orientation, and s. 377 discriminates against homosexuals.

The High Court held that “when matters of ‘high constitutional importance’ such as constitutionally entrenched human rights are under consideration, the courts are obliged in discharging their own sovereign jurisdiction, to give considerably less deference to the legislature than would otherwise be the case” and that “the role of the judiciary is to protect the fundamental rights”.

The Supreme Court Judgment

After the High Court ruling, a group of mostly faith-based groups filed an appeal at the Supreme Court. India’s central government did not appeal and in fact the Home Ministry filed an affidavit in the appeal proceedings in support of the High Court’s decision.

Four years after the High Court judgment, the Supreme Court ruled:

  • that while the courts are empowered to declare any law void for inconsistency with the Constitution, “there is a presumption of constitutionality in favour of all laws, including pre-Constitutional laws, as the Parliament, in its capacity as the representative of the people, is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution”.
  • that Parliament had had ample opportunity to amend the law but had not chosen to do so, and that “unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need.”
  • that although no universal test can be applied to determine whether a particular act falls within the ambit of ‘carnal intercourse against the order of nature’, s. 377 ‘would apply irrespective of age and consent’
  • that the Respondent, Naz Foundation, had “miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them”. This ignores the Court’s own finding that the meaning of the statute is evident from the case law applying it. It prohibits conduct that goes to the very core of human experience for non-heterosexuals
  • that s. 377 “does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation”. This fails to factor in that the acts criminalised are those most associated with homosexuals, for whom penile-vaginal intercourse is not an option for sexual intimacy
  • that “[t]hose who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.” There is no analysis in the case of the medical and scientific evidence which establishes a broad consensus that homosexuality is not a mental disorder or perversion but a personal characteristic that is either unchangeable or changeable only at unacceptably high personal cost
  • that a “miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.” This seems to indicate, quite contrary to the very notion of human rights as applying to ‘every person’, that human rights are not available unless large numbers of people have those rights violated
  • that it was irrelevant whether s. 377 encourages harassment of homosexuals, as such treatment was “neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC.” This ignores the fact that the case was based on the mere fact of criminalisation constituting a violation of rights, and that such violation also leads to State-sanctioned stigma and harassment of the LGBT community
  • that “in its anxiety to protect the so-called rights of LGBT persons” the High Court was mistaken in taking guidance from comparative constitutional decisions from reputable Courts around the world; although such judgments “shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, … they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.” No analysis is undertaken by the Supreme Court of the substantial comparative case law, nor does the Court consider the extent to which the cases deal with directly analogous criminal provisions and constitutional protections, or why the legal principles emanating from those judgments cannot be applied either in whole or in part in the Indian context

Is The Decision Final?

Whilst the Supreme Court is the highest court in India, the Indian Constitution provides for a ‘review petition’ procedure whereby the Court can be asked to reconsider its decision. The Respondent in this case has indicated that it will be filing a petition for review of the decision. Upon the outcome of that review, which in this case will be heard by at least one new judge due to the retirement of one of the judges that heard the case, a further process for a ‘curative petition’ may be open to the Respondent or other interested parties, by which the decision could be reconsidered by a 5-judge bench.

On 20 December 2013, the government itself filed a petition in the Supreme Court asking it to review its decision. In its petition the government says “the position of the central government on this issue has been that the Delhi High Court verdict… is correct”. The Respondent in the case, Naz Foundation, has also indicated that it will be filing a petition for review of the decision.

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