72 countries and territories worldwide still continue to criminalize homosexuality. India stepped out of this bucket on December 6th 2018 by
scrapping Section 377 of the Indian Penal Code, decriminalizing the 159-year-old colonial law which criminalized consensual homosexual act.
Section 377 of the IPC was first introduced in India in 1861 by the British. It stated-
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[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 offense described in this section.
Though the section applies to both homosexuals and heterosexuals, it criminalized all sexual activities except peno-vaginal sex. This was considered to be specifically targeting homosexuals.
Naz Foundation v. Govt. of NCT of Delhi
In 2001, Naz Foundation filed a PIL in the Delhi High Court challenging the constitutionality of Section 377. They argued that they worked with people from the MSM community and there was a surge in incidents of HIV and AIDS. In fear of being arrested under sodomy, these men did not come forward for treatment. Thus, in order to provide proper medical care to these individuals, it was imperative that homosexuality was decriminalized.
After a course of events, finally in 2009, a two judge bench of the Delhi High Court struck down Section 377. They found it to be in violation with the Right to Equality, Right against discrimination, Right to Life and Personal Liberty as enshrined in the Indian Constitution.
The court did not strike down Section 377 as a whole. It decriminalized homosexuality but kept intact the provisions insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors. It further said that this verdict would hold true until the Parliament itself amended the law.
But critics including Suresh Kumar Koushal, a Delhi-based astrologer, challenge the Delhi high court’s decision in the supreme court.
Suresh Kumar Koushal v. Naz Foundation
On 11 December 2013, Supreme Court overturned the Delhi High Court verdict that decriminalized consensual sex among adult homosexuals.
Arguments made by the Apex Court
- IPC had been amended over 30 times since the independence. In all these years, the Parliament did not deem fit to delete/ amend Section 377. Therefore, the power of the Delhi High Court to do so, was questionable.
- Over the last 150 years, fewer than 200 people had been prosecuted under Section 377 hence concluding that this did not make sound basis for declaring the section as ultra vires to the provisions of Articles 14, 15 and 21 of the Constitution.
But the SC also advised the government that it was free to annul the law through legislation.
NALSA Report 2014
The NALSA Report 2014 recognized transgenders as a third gender. Thereafter, the Supreme Court directed the State for an affirmative action policy aiding transgenders. Thus formulated the Transgender Persons (Protection of Rights) Act, 2019.
Shashi Tharoor’s Private Member Bill
In 2015, Shashi Tharoor introduced a Private Member Bill to amend Section 377 thus decriminalizing homosexuality. The bill was not allowed to be tabled after protest from other parliamentarians.
Privacy Judgement 2017
The Supreme Court gave a historic judgement in the Justice K.S Puttaswamy (Retd) v Union of India case. The 9 judge bench unanimously voted that Right to Privacy was a Fundamental Right under the Constitution.
The court also said, “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.
Navtej Singh Johar v. Union of India
On 27 April 2016, dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and businesswoman Ayesha Kapur filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code.This case was the first instance wherein the petitioners argued that they had all been directly aggrieved because of Section 377, alleging it to be a direct violation of fundamental rights.
On 6 September 2018, a five judge bench unanimously declared portions of the law relating to consensual sexual acts between adults unconstitutional. This decision overturned the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation. However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force.
The court also stated the Mental Healthcare Act, 2017 which declared that neither mental illness be determined on the basis of membership to a particular social or cultural group nor can it be determined by “non-conformity with moral, social, cultural, work or political values or religious beliefs prevailing in a person’s community.”
The Court’s reading of the Mental Healthcare Act, 2017 was also a recognition of its commitment as an anti-discrimination legislation which upheld constitutional values and protects the rights of persons with mental illness.
In the past, the police often misused and booked HIV peer outreach workers under Section 377. They have used Section 377 to try to stop HIV prevention activities on the grounds that they aid criminal activities, harass HIV outreach workers, and confiscate condoms as proof of sex work. What we talk little about is the impact that such social attitudes have on lesbian and bisexual women. In such social environments, they are particularly vulnerable to sexual violence, forced marriages and mental health problems. There have been instances of abuse and rape which is perpetuated to ‘correct’ their sexual preferences.
The decriminalization of homosexuality was a long awaited step. Things have changed in the last 2 years and people have become more accepting of the queer community. Many from the community have come out to their families and to people in their workplaces and are more open on conversations about the LGBT community now.
Despite all the recent advancements we certainly need more laws to support and protect the LGBTQ community. Laws such as laws on marriage, adoption, divorce, inheritance, etc. can make a huge difference for this community, who has faced enough discrimination in the past.
“I am what I am. So take me as I am. No one can escape from their individuality.“