This article is authored by Kirti Bhushan, a student of Campus Law Centre, University of Delhi. The article’s major focus is to discuss Section 377 of the Indian Penal Code, 1860 in reference to its historical background which ultimately led to it being partially struck down in 2018.
Section 377 of the IPC, 1860 states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
By a simple reading of this section, one can see that this colonial law which was incorporated in chapter XVI of IPC, 1860 has certainly criminalised homosexuality as they failed to realise that the sexual orientation is natural and people do not have any control over the same. The same law was in force till 2018 when it was partially struck down by the Supreme Court of India in its historic judgment Navtej Singh Johar v. Union of India.
Journey from Prejudice to Pride: Celebrating Pride
The journey from prejudice to pride has been a lengthy one from year 1860 to 6th September 2018 when the Supreme Court decriminalised the same sex relationships. The movement for scrapping down section 377 began nearly three decades ago i.e. during the 1990s and then subsequently the LGBTQ community made their demand vigorously for giving them the same rights as any other citizen of India as no one can regulate their sexual orientation.
It all started on August 11, 1992 when the AIDS Bhedbhav Virodhi Andolan (‘ABVA’) documented a report in which it was explained how the gays were being discriminated against and the ill-treatment they received at the hands of police authorities. It demanded the legislature to repeal the discriminatory section 377 of the IPC, 1860.
Subsequently, the ABVA gained momentum when the then Inspector-General Kiran Bedi of Tihar Jail refused to provide condoms to the prisoners as, in her opinion, it would have led to increase in homosexuality amongst prisoners. Then the ABVA filed a petition in Delhi High Court in the year 1994 to challenge the constitutionality of Section 377 which was subsequently dismissed in 2001 due to lack of support to the petition.
Then in December 2001, the NAZ foundation which was a sexual health NGO filed a public interest litigation (‘PIL’) in the Delhi High Court to challenge the constitutionality of section 377 and decriminalising homosexuality. It was dismissed as it was considered by the Court to have no cause of action and the review petition filed by the NGO later on was also dismissed. Then in February, 2006 a Special Leave Petition (‘SLP’) was filed in the Supreme Court by the Naz Foundation and the Apex Court returned it to the Delhi High Court by holding that it has an issue of public interest.
Then the Delhi High Court in July, 2009 gave a landmark decision when it gave the judgment to strike down Section 377 as it violates the fundamental rights to life, liberty and equality of the people concerned. This judgment was challenged by Suresh Kumar Koushal, a famous astrologer, in the Supreme Court.
The Supreme Court, in December 2013, overturned the Delhi High Court’s judgment stating 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.” This came as a significant blow to the hopes of the LGBTQ community.
In June 2016, Navtej Singh Johar who is an award-winning Bharatanatyam dancer, filed a writ petition in the Supreme Court challenging section 377, along with four other petitioners. In August 2017, a nine-judge bench of the Supreme Court gave the judgment where it upheld that the right to privacy is a fundamental right and further explained: “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.” Thus, it strengthened the hopes of the people and the various NGOs who were protesting to decriminalise homosexuality.
The decades-long struggle culminated on 6th September 2018 when the Supreme Court unanimously held that section 377 of the IPC, 1860 was unconstitutional and the then Chief Justice Deepak Misra described it as “irrational, indefensible and manifestly arbitrary.”
This has been a welcome step in Indian law as the time has arrived to abolish repressive colonial laws. This judgment has served to be a first step in normalizing the LGBTQ movement in India. The struggle of this community has been tiresome as they have always been discriminated against as well as faced judgments in the eyes of the society. It was indeed necessary to decriminalise homosexuality as the same has now led to the LGBTQ community to live a dignified life since the right to live with dignity is a fundamental right and all the citizens of India can exercise the same.
The section 377 of IPC, 1860 has been partially struck down i.e. to say that the consensual sexual acts (oral or anal) of heterosexual couples are still treated as unnatural and are punishable under section 377. Moreover, the personal and secular laws still provide for the marriages between heterosexual couples and not the homosexual couples. The right to adoption is also not available to homosexual couples. Thus, the judgment has led to provide some relief from criminal prosecution to the LGBTQ community yet the Civil Law needs to be amended by the Parliament to help the LGBTQ community to truly help them exercise their right to live a dignified life.
Merely a judgment will not succeed in changing the mentality of people and there is need to instil the concepts of inclusion and acceptance of diversity in people as well as to teach them not to be discriminatory because the nation is already polarized on various cultural, social or religious grounds.
As the Supreme court has rightly commented its verdict as: “This is the beginning of the end of Prejudice” and therefore, the concept of people being in same-sex relationships should be normalized and the LGBTQ community should be treated at par with other people and we have to normalize same-sex couples and marriages to truly “celebrate the pride.”
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