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  • Smita Gupta & Stuti Srivastava

Tracing the Decriminalization of Homosexuality in India

Introduction

In Hindu mythology, allusions to a neutral gender have been made galore. From Krishna to Narada, be it in the Mahabharata or Ramayana, the hovering presence of the LGBTQ community was as strong then as it is today in the 21st century. Sexual fluidity was the norm until all our core ideas were challenged as a result of British rule in the country. From there started the journey of the legal criminalization of homosexuality.


This Act was replaced by the Offences Against the Person Act, 1828 and subsequently the Offences against the Person Act, 1861. These Acts continued to criminalize sodomy, although the punishment was reduced to a period of ten years, from the earlier, much graver death penalty.[iii]

It is these archaic laws, which influenced the drafting and inclusion of Section 377 into the Indian Penal Code. With changes in the conscience of the society, there arose a need for a change in the archaic rules governing homosexual behaviour.


First Challenge

The first challenge to Section 377 came in the year 1994, when the AIDS BhedbhavVirodhiAndolan filed a writ petition in the Delhi High Court, in AIDS BhedbhavVirdohiAndolan v. Union of India.[iv]The petition had arisen out of a controversy wherein the authorities of the Tihar jail had refused to make condoms available to the inmates. The petition prayed for Section 377 to be declared unconstitutional and to allow the availability of condoms in the premises of the Tihar jail. This petition was dismissed in 2001.[v]


Second Challenge

This was followed by a writ petition in the Delhi High Court in 2001 by the Naz Foundation, an organization which actively supports the LGBT community, challenging the constitutionality of Section 377.[vi] This petition was dismissed in 2004; on the grounds that this was a matter of pure academic discussion and that the organization had no locus standi in the matter. A special leave petition was then filed in the Supreme Court, and it was held by the Court to be a matter of public interest. Following the directives of the Supreme Court, the Delhi High Court took up the case again in December 2006. The petition was joined by a coalition of NGOs, ‘Voices against 377’.


First Victory

In July 2009, a bench of the Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi[vii], comprising of then Chief Justice A.P. Shah and Justice S.Muralidhar, declared Section 377 of the Indian Penal Code as unconstitutional, holding it to be violative of Articles 14, 15 and 21 of the Constitution. Only a part of Section 377 was held to be unconstitutional. The portions of the Section governing non-consensual acts and non-consensual acts with minors continued to be valid. The Court rejected the government’s argument that the persons affected by this Section constitute a small minority in the country and held that, “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy.”[viii]This is considered a landmark decision in India’s constitutional history.


While this judgment made many happy, there were several critics of the judgment as well. Numerous petitions were filed in the Supreme Court, appealing against the judgment of the Delhi High Court.


The decision on these petitions came out in December 2012, when a two-judge bench of Justices Singhvi and Mukhopadhaya in Suresh Kumar Koushal v. Naz Foundation[ix], set aside the ruling of the Delhi High Court. The verdict in Naz Foundation v. Govt. of NCT of Delhi[x] was held to be “legally unsustainable” and the bench left it to the wisdom of the Parliament to delete the Section, if considered necessary. The review petition filed by Naz Foundation was quashed by the Supreme Court in 2014.


However, in 2016, the Supreme Court allowed petitions by a number of LGBT activists which claimed that their right to sexuality and sexual autonomy, among others were being infringed by Section 377.


Right to Privacy

In 2017, the landmark judgment delivered by a nine-judge bench of the Supreme Court in Justice K.S Puttaswamy and Anr. v. Union of India and Ors[xi]., held the right to privacy to be an intrinsic 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 of the Supreme Court gave hope to the LGBT community regarding the decriminalisation of homosexuality in India.


Last Lap

Finally, a five-Judge Constitutional bench of the Supreme Court on 6th September 2018 partially struck down Section 377 in as much as it criminalised consensual sex between adults in private. The judgment[xii] has come in the light of homosexuality being pitted against the traditional values of Indian society. This orthodox view led five petitioners to file petitions in the Supreme Court demanding the decriminalization of homosexuality. The violation of Fundamental Rights under Articles 14, 15, 19 and 21 was claimed. This judgment was highly awaited and has been applauded both domestically and internationally.


As of May 2017, 72 states[xiii] had characterized homosexuality as a crime. With that number being reduced by at least one this week, India has aligned itself to the cause of dignity for all.

Our country has come full circle with the decriminalisation of homosexuality by way of this progressive judgment. This is a step forward for India not only in terms of guaranteeing basic human rights to all individuals but also in successfully decolonising its laws.

 

[i]‘Chairman `s visit to Malaysia- Note to the Press’, Law Commission of India, Ministry of Law and Justice, athttp://www.lawcommissionofindia.nic.in/prbrf.htm (Last accessed 8 September 2018).

[ii]‘The Buggery Act 1553’, The British Library, athttps://www.bl.uk/collection-items/the-buggery-act-1533 (Last accessed 8 September 2018).

[iii] Steven Dryden, ‘A short history of LGBT rights in the UK’ British Library, at https://www.bl.uk/lgbtq-histories/articles/a-short-history-of-lgbt-rights-in-the-uk (Last accessed 9 September 2018).

[iv]Civil Writ Petition 1784 of 1994, Delhi High Court.

[v]Shobha Aggarwal, ‘Reminiscing ABVA’s struggle for Gay Rights in the Twentieth Century- A Brief History of Time’ (2018) AIDS BhedbhavVirdohiAndolan,Aids BhedbhavVirodhiAndolan, at http://aidsbhedbhavvirodhiandolan.blogspot.com/ (Last accessed 8 September2018).

[vi]Naz Foundation v. Govt. of NCT of Delhi,(2009) 111 DRJ 1 (DB).

[vii]Ibid.

[viii]Ibidat ¶ 86.

[ix]Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.

[x]Supra note 6.

[xi]Justice K.S Puttaswamy v. Union of India, (2017) 10 SCC 1 para 144.

[xii]Navtej Singh Joharv. Union of India, (2018) 1 SCC 791.

[xiii]‘Sexual Orientation Laws in the World- Criminalization’,The International Lesbian, Gay, Bisexual, Trans And Intersex Associationathttps://ilga.org/downloads/2017/ILGA_WorldMap_ENGLISH_Criminalisation_2017.pdf (Last accessed 8 September 2018).

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