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IMPACT OF FOREIGN DECISIONS ON SECTION 377 JUDGEMENT

By Sagnik Sengupta

The Indian Penal Code (IPC) has a specific provision which penalised the LGBTQ community for homosexual intercourse. This was mentioned under Section 377 and is categorised under “unnatural offences” and clearly mentions that an individual would be imprisoned for life if this person has any voluntary sexual intercourse against “the order of nature”. This “order of nature” basically meant that the act of sexual intercourse could only be executed by two opposite genders, male and female. Thus, homosexual sexual practices were deemed to be against the “order of nature”. This section of IPC violated many basic human rights of the LGBTQ community which stands for Lesbian, Gay, Bisexual, Transgender and Queer, in India. Many NGOs and other organizations tried to challenge this section of the statute but the petitions were dismissed. In 2009, consensual homosexual intercourse was decriminalised by the Delhi High Court, however, the Supreme Court of India overturned this judgement in 2013. The Supreme Court stated that the decision of the Delhi High Court was “legally unsustainable”.
In 2016, a number of LGBTQ activists filed five petitions in the Supreme Court claiming that this particular section of the Indian Penal Code violated their community’s numerous rights which are preserved and protected under the Indian Constitution. In 2017, the Supreme Court said that Right to Privacy is a fundamental right and that one’s sexual orientation is one of the most important attributes of privacy. This paved the way for the historic judgement given by the Supreme Court on September 6, 2018.
The five-judge bench of Dipak Misra, who was the Chief Justice of India at that time, Justice R F Nariman, Justice Indu Malhotra, Justice A M Khanwilkar, and Justice D.Y. Chandrachud started hearing the petitions in July 2018. One month later, the historic judgement was given unanimously by the five judges and it was said that consensual homosexual intercourse is not a crime. It was also said that criminalizing homosexuality contradicted Article 14 and Article 21 of the Indian Constitution. The judges referred to several foreign decisions to come to this conclusion. Such foreign decisions were taken from numerous countries. This paper focuses briefly on the history of the journey which paved the way for this historic judgement, how the various foreign decisions were interpreted and the impact of these foreign decisions in this historic judgement.

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