WE BELIEVE IN CHANGE
In a landmark decision, the supreme court has finally struck down a 19th century law criminalising homosexuality in India.
A bench consisting of chief justice Dipak Misra and justices DY Chandrachud, AM Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman began hearing petitions against section 377 of the Indian Penal Code in July this year. On Sept. 06, in a unanimous verdict, the court ruled that homosexuality is no longer a crime in India, and that the members of LGBTQ community have the same sexual rights as any other citizen.
The Centre, which had initially sought adjournment for filing its response to the petitions, had later left to the wisdom of the court the issue of legality of the penal provision on the aspects of criminalising consensual unnatural sex between two consenting adults.
The Centre had said that the other aspects of the penal provision dealing with minors and animals should be allowed to remain in the statute book. Section 377 refers to ‘unnatural offences’ and says whoever voluntarily has ..
INDIAN PENAL CODE SECTION 377
The petitioners
The apex court heard the writ petitions filed by dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur and 20 former and current students of the IITs.
They have sought decriminalisation of consensual sex between two consenting adults of the same sex by declaring section 377 of IPC as illegal and unconstitutional.
Coming from different parts of the country with diverse religion, age, sex and other backgrounds, the petitioners said that section 377 legitimises the stigma associated with sexual orientation and its expression something which is essential, fundam
The Supreme Court has scrapped Section 377 of the IPC, decriminalising the 158-year-old colonial law which criminalises consensual gay sex.
Section 377 and child abuse
Child rights activists had criticised the Delhi HC verdict of de-criminalising homosexuality on the ground that Section 377 was needed to tackle cases of child abuse. However, the enactment of the Protection of Children from Sexual Offences (POCSO) Act 2012 removed the need to use Section 377 as POCSO is more child-friendly and much more stringent.
TIMELINE
Here’s a timeline of the battle against section 377 in India, which began over 20 years ago:
November-December 1991: A document detailing the experiences of gay people in India is released by the AIDS Bhedbhav Virodhi Andolan (ABVA), an organisation fighting discrimination against those affected by HIV or AIDS. The 70-page report reveals the shocking extent of blackmail, extortion, and violence that gay people faced, especially at the hands of the police.
The report calls for the repeal of legislation that discriminates against members of the LGBTQ community, including section 377. But when released at the Press Club of India, journalists are reportedly so embarrassed they don’t raise a single question.
May 1994: Controversy erupts after Kiran Bedi, inspector general of the Tihar jail in Delhi, refuses to provide condoms (pdf) for inmates, saying it would encourage homosexuality, besides admitting that inmates indulge in it. In response, ABVA files a writ petition in the Delhi high court, demanding that free condoms be provided and that section 377 be recognised as unconstitutional. Despite long-running efforts to mobilise support, the petition is eventually dismissed in 2001.
December 2001: The Naz Foundation, a sexual health NGO working with gay men, files a public interest litigation (PIL) in the Delhi high court, challenging the constitutionality of section 377 and calling for the legalisation of homosexuality.
September 2004: The Delhi high court dismisses the case, saying there is no cause of action and that purely academic issues cannot not be examined by the court. A review petition filed by the Naz Foundation is also dismissed a few months later.
February 2006: After the Naz Foundation files a special leave petition for the case, the supreme court reinstates it in the Delhi high court, citing the fact that it is an issue of public interest. In the coming months, Voices Against 377, a coalition of NGOs, joins the petition, while India’s ministry of home affairs files an affidavit against the decriminalisation of homosexuality.
July 2009: In a landmark judgment, a Delhi high court bench consisting of chief justice Ajit Prakash Shah and justice S Muralidhar decides to strike down section 377, saying it violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution. But critics, including Suresh Kumar Koushal, a Delhi-based astrologer, challenge the Delhi high court’s decision in the supreme court.
December 2013: The LGBTQ community suffers a significant blow when the supreme court overturns the Delhi high court’s judgment, saying 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.”
June 2016: Navtej Singh Johar, an award-winning Bharatanatyam dancer, files a writ petition in the supreme court challenging section 377, along with four other high-profile Indians, including chef Ritu Dalmia and hotelier Aman Nath.
August 2017: A nine-judge supreme court bench hearing petitions against India’s biometric programme Aadhaar unanimously rules that privacy is a fundamental right. In its judgment, the court also says, “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,” raising the hopes of those campaigning against section 377.
April 2018: Top hotelier Keshav Suri, who identifies as gay, joins the fight, files a petition with the supreme court.
July 2018: A five-judge bench of the supreme court, including chief justice Dipak Misra, begins hearing the petitions filed by Johar and others against section 377. While supporters of the law claim the spread of sexually transmitted diseases and the disintegration of India’s social fabric as reasons to retain it, many of the justices make encouraging comments. “It is not an aberration but a variation,” justice Indu Malhotra says.
A central government affidavit leaves the decision on the section’s constitutionality to the court’s wisdom. The supreme court decides to reserve its verdict.
September 2018: In a unanimous verdict, the supreme court decides to scrap section 377, which chief justice Misra describes as ”irrational, indefensible and manifestly arbitrary,” marking a triumphant end to a lengthy struggle for justice.