On Tuesday, a five-judge constitutional bench headed by Chief Justice of India Dipak Misra will begin hearing the petitions challenging Section 377 of the Indian Penal Code. While the commencement of hearing in the case will mean that the Central Government led by Prime Minister Narendra Modi will have to put on record its stand on the section that criminalises homosexuality in India, that isn't the stand alone reason why the hearing is significant.
The constitutional bench will hear as many as six petitions and interventions which were filed by the NGO Naz Foundation, 'Voices Against 377' human rights activists and parents of queer children. The hearing in the case will see as many as 35 individuals petitioners before the court to demand that the colonial anti-LGBT law is struck down in India.
On 8 January 2018, a three-judge Supreme Court bench decided to revisit the 2013 verdict of the Supreme Court which refused to strike down Section 377 thereby essentially allowing the state to interfere in matters of personal choice and sexual orientation.
The three judge bench, while making its decision to refer the matter to a five judge bench said, "Earlier decision of the Supreme Court in 2013 requires to be reconsidered because of the constitutional issues involved and we think it appropriate to send this to a larger bench".
Heartening for the LGBT community, the court also said, "A section of people or individuals who exercise their choice should never remain in a state of fear" and "Choice can't be allowed to cross boundaries of law but confines of law can't trample or curtail the inherent right embedded in an individual under Article 21 - Right to life and liberty".
For the first time, the Modi government will be putting on record its stand on Section 377 inside court and that too a day after the apex court rejected the central government's plea for adjourning the scheduled hearing. On Monday, the Modi government sought more time to file its response, but the Supreme Court bench led by Chief Justice
Dipak Misra refused to delay the matter by saying that it was long pending. "We will go ahead with the scheduled hearing. We will not adjourn it. You file whatever you want during the hearing" the bench said.
While to this point, there have been utterances from Union Minister Arun Jaitley and then Union Healthy Minister Harsh Vardhan as being pro-the striking down of Section 377, there has not been an official stand taken by the Central government of the day in court. In fact, those within the party have often taken diametrically opposition positions on the matter.
In February 2017, Jaitley spoke in support of abolishing Section 377 and said, "Supreme Court should not have reversed the Delhi High Court order which de-criminalised consensual sex between gay adults". Meanwhile, then Union Health Minister Harsh Vardhan in 2014 on being asked about gay rights said “Everybody has human rights. It is the job of the Government to protect them”.
However, contrastingly, then BJP President Rajnath singh in December 2013 months ahead of coming into power was quoted as to have said, “We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported”
The timing of the Section 377 hearing being kicked off is of immense significance. The present hearing the case comes in the backdrop of the historic NALSA ( National Legal Services Authority vs Union of India) verdict in 2014 which recognized the third gender in India, as well as the historic Right to Privacy verdict, wherein Right to Privacy was upheld as a fundamental right, was delivered by the Supreme Court last year.
Right after the Right to Privacy verdict, Retd. Justice AP Shah who had delivered the Delhi Court verdict striking down section 377 said “There is very little scope now for those wanting to support Section 377. The only argument that can be advanced by them is that of reasonable restriction [on the fundamental rights]. But invading the bedroom can’t be considered reasonable restriction”.
In 2001, Delhi-based NGO, Naz Foundation, filed a public interest litigation in the Delhi High Court challenging Section 377 which was dismissed by the High Court in September 2004. Then, in December 2004, LGBT activists approached the Supreme Court against high court’s order which was then redirected by the top court to the high court.
While in September 2008, during UPA I, the Centre sought more time to take stand, the Dr. Manmohan Singh's government said that "gay sex" is immoral. While the High Court in October 2008 pulled the Centre for making a religion-based argument instead of a scientific one, in July 2009 the High Court decided to remove con sensual same sex acts in private from the Section 377 purview. While this seen as an interim win for pro LGBT activists, in December 2013 the Supreme Court set aside the Delhi high court order and put the onus on the Indian Parliament to formulate a law.
Interestingly, in January 2014 the top court dismissed a Manmohan Singh government petition which sought a review of the top court verdict of not doing away with Section 377. Two years later, in January 2016, the Supreme Court agreed to hear a curative petition in the case.
The anti- Section 377 movement gathered some steam in August 2017 when the Supreme Court upheld Right to Privacy as a fundamental rights for all Indians.
In January 2018, the Supreme Court then referred Section 377 to a larger bench of the court putting on record that its 2013 decision requires reconsideration.