By Aditya Singh Raghav
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The decision to scrap section 377 follows a struggle by activists and members of the community against the repressive law, introduced in 1860 under the British rule. The journey for the recognition of the sexual rights of the LGBTQ community has been a bumpy one. Though the UK decriminalized homosexuality in the year 1967 after passing the Sexual Offences Act, homosexuality was still criminalized in India. There were several cases of violence and abuse against LGBTQ community in the post-independence era but these matters were not discussed on any platform until 1991 when a movement against section 377 sparked. Here is the timeline of the battle against section 377 in India.
November-December 1991:
The Beginning of the Movement
Protests
against section 377 started attracting attention in 1991 when AIDS Bhedbhav
Virodhi Andolan (ABVA) released a document “Less than Gay” on the experiences
of gay people in India and it was the first document in India which publicly
demanded rights for the LGBTQ community. Through this report, ABVA advocated
for rights of the LGBTQ community, including same-sex marriage, LGBT parenting,
and decriminalization of section 377 of the IPC. This 70-page long report
revealed the incidents of violence, abuse, extortion and blackmailing against
gay people, especially at the hands of the police. However, this report, when
released at the Press Club of India, was neglected by journalists as they felt it
was embarrassing for them to discuss the topic on a large scale.
May 1994: The First
Challenge
ABVA
filed the first petition challenging the constitutionality of Section 377 in the
Delhi High Court. This petition challenged the prison authorities’ ban on
condom distribution to prisoners. ABVA stated that Kiran Bedi, the then Inspector
General of Tihar Jail in Delhi, had refused to provide condoms for inmates. She
said that two-thirds of all inmates at Tihar Jail engaged in homosexual
behavior and that distribution of condoms would encourage homosexuality. The petition
filed by ABVA demanded that free condoms should be provided and that section
377 should be held unconstitutional as it violates their rights. However, in 2001,
the petition was dismissed.
December 2001: The Second
Challenge
Naz
Foundation, a sexual health NGO working with gay men, filed a public interest
litigation (PIL) in the Delhi High Court challenging the constitutionality of section
377 and demanded a legislation for homosexuality. The petition said that section
377 violated articles 14 (equality), 15 (discrimination on the basis of sex), 19
(freedom of speech and expression), and 21 (the right to life in terms of privacy
and health). Several protests were held across the country for and against the
matter. Many religious groups were against the scrapping of section 377 as,
according to them, homosexuality was against God and Indian culture, and legalizing
homosexuality would spread diseases such as AIDS.
2003: The case is
dismissed
In
2003, the Delhi High Court refused to consider Naz Foundation’s petition. The
court stated that the petitioners had no “locus standi” in the matter and therefore,
the case cannot be considered. Naz Foundation appealed to the Supreme Court of
India. The Supreme Court decided that Naz Foundation had the right and interest
to file the petition in the court and the Delhi High Court was directed to
reconsider it.
September 2004: Review
petition against the order
A
two-judge bench of the Delhi High Court dismissed the case and stated that
there is no cause of action and the court cannot examine a matter of pure
academic discussion. Naz Foundation then filed for a review petition against
the order of the Delhi High Court, but it was also dismissed by the court on
similar grounds a few months later.
February 2006: Special
leave petition
After
the case was dismissed by the Delhi High Court in 2004, Naz Foundation filed a
special leave petition in the Supreme Court. Following the directives of the
Supreme Court, the Delhi High Court took up the case again in December as it
was an issue of public interest. India’s Ministry of Home Affairs filed an
affidavit against the decriminalization of homosexuality. Many NGO’s and communities
which fought for gay rights raised their voice in support of the petition filed
by Naz Foundation and this coalition was known as “Voices against 377”.
July 2009: First
Victory against Section 377
A
bench of the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi
declared that Section 377 was unconstitutional. The Court stated that section
377 violated articles 14, 15 and 21 of the Constitution. However, the provisions
governing non-consensual acts and sexual acts with minors remained valid. The
court rejected the government’s argument that the persons affected by section
377 are a small minority in the country and held that “Moral indignation, howsoever
strong, is not a valid basis for overriding individual’s fundamental rights of
dignity and privacy”. This decision was the first victory of LGBTQ community in
the fight for their rights, but this judgement was criticized by many and
numerous petitions were filed in the Supreme Court appealing against the
judgement of the Delhi High Court. The Supreme Court clubbed these along with
one filed by Suresh Kumar Kaushal, a Delhi-based astrologer.
2013:
Re-Criminalization of Section 377
The
Delhi High Court judgement in 2009 was overturned by the Supreme Court of India
in Suresh Kumar Kaushal v. Naz Foundation. The Court held that the judgement in
the 2009 case was “legally unsustainable” and that section 377 did not suffer
from unconstitutionality. The Court also held that it was up to the Parliament
to consider whether the section should be removed or not. All acts under section
377 were re-criminalized and LGBTQ community was once again deprived of their
rights.
This
verdict got a lot of criticism from the LGBTQ community in India and abroad and
several activists observed it as a “Global Day of Rage”. Naz Foundation then
filed a review petition but it was quashed by the Supreme Court in 2014.
June 2016: Curative
Petition by Naz Foundation, activists heard
In
February 2016, a three-member bench headed by the then Chief Justice of India
TS Thakur said that all the curative pleas by Naz Foundation and other activist
will be reviewed again by a five-member constitutional bench. In June, Navtej
Singh Johar, an award-winning Bharatanatyam dancer, filed a writ petition in the
Supreme Court to challenge section 377, along with four others including chef Ritu
Dalmia and hotelier Aman Nath. The petition claimed that their right to
sexuality and sexual autonomy were being infringed by Section 377.
August 2017: Effect of the
Right to Privacy
The
landmark judgment in 2017 delivered by a nine-judge bench of the Supreme Court
in Justice K.S. Puttaswamy v. Union of India and Ors.
held that the right to privacy is a fundamental
right and stated that “sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of sexual orientation is
deeply offensive to the dignity and self-worth of the individual”. This
decision in 2017 gave hope to the LGBTQ community regarding the
decriminalization of section 377 in India.
Another
case that strengthened the case against Section 377 was the NALSA judgement (National Legal Services Authority v. Union of
India) in 2014 through which the transgender
community was given the right to be called the “Third Gender”.
2018: The Last Battle
In
April, a petition was filed by a top hotelier, Keshav Suri, in the Supreme
Court. The apex court said that people could not live in fear of a law which
undermined their rights to privacy and dignity to choose, and the issue of section
377 was reopened for one last time. A five-judge bench of Supreme Court heard
the petitions filed by Navtej Singh Johar and others against section 377. The
petitioners alleged that section 377 violated articles 14, 15, 19 and 21 of the
Indian Constitution.
The
Central government’s affidavit gave the Supreme Court the freedom to make a
decision on the section’s constitutionality which was earlier ruled as “legally
unsustainable”. In September, the Supreme Court unanimously decided to scrap section
377 in Navtej Singh Johar and others v. Union of India, except in relation to
offences against children, non-consensual sexual activity, and bestiality.
Chief Justice Dipak Mishra described the section as “irrational, indefensible
and manifestly arbitrary.”
Some important points which favoured the scraping of Section 377:
- Right to sexuality, sexual autonomy, and freedom were indispensable to human dignity
- Section 377 was against the fundamental rights of the LGBTQ community
- Due to criminalization of homosexuality, a section of society was not receiving proper medical facilities, creating barriers in effective prevention and treatment of AIDS/HIV
- Increased substance abuse, violence, and mental illness due to lack of social acceptance
- Discrimination against these sexual minorities was against public morals
Beyond 377
The
Supreme Court’s verdict on section 377 in the case of Navtej Singh Johar v.
Union of India ended a long battle against section 377. The judgement brought joy
to many people and all those who support the right to equality of the LGBTQ
community. The section was termed as:
“Discriminatory
in nature as consensual sex between adults in a private space, which is not
harmful to women or children, cannot be denied as it is a matter of individual
choice. This section violates constitutional principles. An individual’s sexuality
cannot be put into boxes or compartmentalizes; it should rather be viewed as
fluid, granting the individual the freedom to ascertain their own desires.”
Repealing
section 377 in India is a giant leap for the LGBTQ community. India has come
closer towards achieving equality of all classes of society. The Court
recognized the importance of the Right to Privacy but there still remains a lot
to be done to protect the LGBTQ community from discrimination and systemic
oppression. Sexual minorities can now lead a life of dignity without the fear
of law and it is important that society accepts them the way the law has
accepted them.
Back to part 1 - A History of Section 377.
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Aditya is a 2nd year law student at National Law University Delhi. An adventurous person, he actively participates in sports activities and loves to go trekking. He is a football fan and you can easily find him discussing football matches with his friends. His interests include Commercial Law, Constitutional Law, Criminal Law and Competition Law.
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