Guest Editor's Introduction: 'Section 377: The Indian Supreme Court's Expanding LGBT Rights Jurisprudence'

Aradhya Sethia

Yale Fox International Fellow

On 6 September 2018, in Navtej Johar v. Union of India, a five-judge bench of the Indian Supreme Court partially struck down Section 377 of the Indian Penal Code, which criminalized “carnal intercourse against the order of nature.” The Court unanimously declared that criminalization of any consensual sexual relationship between two adults violates the rights to equality, freedom of expression, and privacy. The decision makes momentous advances in Indian fundamental rights jurisprudence, which will be of significant interest to comparative constitutional law scholars.

This celebrated decision has already received much attention. It would not be an overstatement to claim that Section 377 is one of the most contentious pieces of law in India, and has probably received the most extensive academic commentary.

Litigation History and Background

Section 377 of the Indian Penal Code traversed a long path before its partial demise by the decision of the Indian Supreme Court delivered on 6 September. Its constitutionality was first challenged in 1994. After facing several hurdles of standing rules, it was finally heard and read down to exclude adult consensual acts in private by the Delhi High Court in its much celebrated decision Naz Foundation v. Union of India (Naz). In 2013, the Supreme Court, in Suresh Koushal v. Naz Foundation (Koushal), despite no appeal from the Government, overturned the Delhi High Court decision, and reinstated section 377 in its full measure.

In 2017, in an unrelated case, Puttaswamy v. Union of India, a 9-judge bench of the Supreme Court, while deciding whether the Indian Constitution guarantees the right to privacy, struck a fatal blow to Koushal. Since the constitutionality of Section 377 was not before the Court, it restrained from striking down the provision. However, it criticized Koushal as constitutionally “unsustainable”. This brought fresh life to the legal struggle for decriminalization which, after this decision, seemed to many, a mere formality.

The current case

On the basis of the Puttaswamy decision, which significantly expanded privacy rights, fresh petitions were filed challenging the constitutionality of Section 377. Like in 2013, the Government refused to challenge decriminalization, and left the decision to the “wisdom of the court”. The Supreme Court read down or “partially struck down” Section 377 by excluding consensual acts in private between adults from the purview of unnatural intercourse on the grounds of Articles 14 and 15 (right to equality and non-discrimination), Article 19(1)(a) (freedom of expression) and Article 21 (right to privacy). While the verdict of the Court was unanimous, four separate opinions make distilling the binding doctrine an uphill task. This symposium contains four blog posts, which will discuss the jurisprudence of the Court on the grounds on which the Court declared the criminalization unconstitutional.

Contributors

• Wednesday 12 September: Aradhya SETHIA: ‘A Constitutionalism of Decolonization: Thoughts on Navtej Johar v. Union of India’ [discussing the Court’s special treatment of colonial statutes by removing presumption of constitutionality]

• Friday 14 September: Akshat AGARWAL: ‘Asking Searching Questions to Forms and Symbols of Injustice: Indirect Discrimination, Intersectionality and Principle of Anti-stereotyping’ [discussing the Court’s interpretation of anti-discrimination provision].

• Monday 17 September: Vanshaj JAIN: ‘Right to Equality and Standard of Review’ [on the Court’s rejection of reasonable classification test and adoption of arbitrariness doctrine].

• Wednesday 19 September: Shraddha CHAUDHARY: Discussing the private-public divide and criminalization of private affairs.

Guest Editor | Aradhya Sethia