Section 377, Indian Penal Code: Unnatural offences – 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 …

This was the text introduced by Lord Macaulay in 1860 which, in one form or another, travelled through much of the British Empire. In 2000, the 172nd Report of the Law Commission of India specifically recommended the deletion of that section, however, the Legislature chose not to amend the law or revisit it.

In 2009, through Naz Foundation, a two judge Delhi High Court bench delivered a 105-page judgment that empowered a historically marginalised community. With an innovative use of comparative law, this judgment held that Section 377 denies a person’s dignity and criminalises her or his core identity solely on account of her or his sexuality and thus violates a gay person’s right to full personhood which is implicit in the notion of life under Article 21 of the Indian Constitution. Using the tools of dignity, equality, privacy and reading sexual orientation as analogous to sex within non-discrimination clause of the Constitution, the bench read down Section 377, insofar it criminalises consensual sexual acts of adults in private.

However, this joy was short lived. In 2013, the Supreme Court of India in Koushal re-criminalised homosexuality noting that Section 377 did not criminalise a particular identity or orientation and the ‘mere fact that the section is misused by police authorities is not a reflection of the vires of the section.’  As author Vikram Seth remarked, this judgment date marked a ‘Bad day for Law and Love’ in India.

Following the Koushal decision, a review petition on the matter was dismissed, following which a curative petition was filed. In 2014, a significant breakthrough was made as the Court agreed to hear the petition in open court, thus, departing from its usual practice of deciding curative petitions by circulation in judges’ chambers. In 2016, yet another breakthrough was made, when a three- judge bench of the Court held that the matter would be heard before a constitution bench of the Court.

It was against this backdrop, that at the end of August 2017,  a nine-judge Supreme Court bench unanimosuly held that privacy was a fundamental right under the Indian Constitution. The judgment in Puttaswamy opened up a discussion on the intersection of privacy and the rights of queer persons along multiple grounds. A majority of the judges expressly held that sexual orientation is a facet of privacy. The Puttaswamy decision noted that the de minimis hypothesis (Koushal’s reference to LGBTQ population as a ‘miniscule fraction’ and assertion that there had only been 200 prosecutions under the law since its inception in 1860) is misplaced as the invasion of a fundamental right is not rendered tolerable when a few as opposed to a large number of persons are subjected to hostile treatment. A plurality of four judges concluded that it was not specifically overruling Koushal only because that case was still pending in curative proceedings.

In a recent order of 8th January, 2018, a three-judge bench of the Supreme Court, in the matter of Navtej Johar concerning a writ petition filed by five LGBT persons under Article 32 of the Constitution alleging direct violation of fundament rights, referred the correctness of the Koushal judgment to a Constitution Bench. But what does this mean for the pending curative petition? The situation seems to be clouded as this order seems to have already allowed a reconsideration of the judgment, which would have been achieved if the curative petition had succeeded. While, this indicates that there will now be procedural issues to untangle (such as the petitioners in the curative petition may now have to get their petitions tagged with Navtej Johar or file fresh intervention applications), it also marks an important trajectory in the legal struggle against Section 377. A fresh consideration of the matters means that the court will not be bound by the strict standard that governs curative petitions. This also opens up the possibility of moving beyond the privacy argument and invoking the grounds of equality, dignity and non-discrimination.

Interested in knowing more? On 2nd March, 2018, The Oxford India Centre for Sustainable Development will be hosting Mr. Danish Sheikh at the Margaret Thatcher Centre, Somerville College at 5 pm. There will be a staged reading of the play, Contempt, followed by a discussion led by the playwright (Danish Sheikh).  Contempt is a theatrical rendition of the Section 377 hearings that took place in the Kaushal judgment. Come join us as we embark on a journey of twists and turns of the ‘infamous’ Section 377. https://www.eventbrite.com/o/oxford-india-centre-for-sustainable-development-somerville-college-university-of-oxford-16883366028