The Supreme Court’s verdict in Justice K S Puttuswamy (Retd.) & Anr vs. Union of India on August 24th of 2017 declaring Right of Privacy as a fundamental right part of Article 21- Right to Protection of Life and Personal Liberty will have far-reaching implications. It may result in decriminalization of certain laws as well as the extent of the criminal law in matters of sexuality. This also plays cohesively with the role of consent and privacy in sexual matters, whether in heterosexual or same-sex relationships.
The first petition for repealing Section 377 was filed by the NGO Bedhbhav Virodh Andolan(ABVA) as a result of their well-placed concern over male sexual health and HIV/AIDS in the aftermath of Kiran Bedi, then superintendent of Tihar Jail denying health workers to distribute condoms to male inmates. ABVA strongly maintained in its publication Less than Gay: A Citizen’s Report on the Status of homosexuality in India their demand to “recognize the right to privacy as a fundamental part of the citizen’s right to life and liberty, including the right to his/her sexual orientation.”
The next legal challenge which culminated into definitely the first major development in this regard came in December 2001 when Naz foundation working on MSM(Men having sex with Men) filed a PIL which was dismissed three years later having being termed a “mere academic challenge” to the constitutionality of a legislative provision. The Naz Foundation then filed an SLP which was admitted causing the case to be reinstated in the High Court. In July 2009 , the Delhi High Court declared Section 377 violative of Article 21, 14 and 15 in so far as it criminalizes consensual sexual acts of adults in private. This permitted consensual sex but non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors was still criminalized.
This groundbreaking judgment was overturned on December 11, 2013 in the case of Suresh Kumar Koushal & Anr. Vs Naz Foundation & Ors by the Supreme Court held that Section 377 “does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.” The issue was left to the Parliament to deal with. Subsequent review petitions were dismissed. It is imperative to note here that there was a minuscule fraction argument of these affecting a very small amount of people, which was subsequently discarded in the Puttuswamy judgment wherein it held “sexual orientation is an essential attribute of privacy.”
The present case was constituted in June 2016 when a writ petition was filed in the Supreme court challenging IPC Section 377, Navteej Singh Johar and Ors vs. Union of India. This was referred to a larger Bench to reconsider the judgment in Suresh Kumar Koushal & Anr. Vs Naz Foundation & Ors observing that,-“ A section of people or individuals who exercise their choice should never remain in a state of fear.”
A few important contentions that might determine the outcome for Section 377 include the observations by the Nine judge bench in Right to Privacy judgement and also the fact that 377 talks about unnatural sex between same-sex people that is anal and oral sex which having been included in the 2013 amendment of IPC in the definition of rape ceases to be unnatural.
Indira Jaising, former Additional Solicitor General and Senior Advocate in the Supreme Court correctly pointed out that it is the issue of consent in heterosexual adults that criminalizes the sexual act the liberty of which needs to be extended to the homosexual adults as well. She wrote that – “It would do well to pin their judgment on the principle that adults have decisional autonomy in the matters of sex so long as they do not harm others.” The rest remains to be seen.
Image from here