Decriminalising Section 377: The Long and Chequered Past of 'Unnatural Sex' in India
From Tuesday, the Supreme Court started hearing multiple pleas in favour of decriminalising Section 377, i.e. making non peno-vaginal sex legal. But this is not the first time an attempt to decriminalise Section 377 has been made in India.
Image for representation. (Reuters)
Section 377 of the Indian Penal Code is a colonial era law enacted by the British government in India in 1861. The law prohibits ‘unnatural’ or non peno-vaginal intercourse. Plainly put, it prohibits sex between members of the same gender.
While most parts of the world today have woken up to the movement for securing LGBTQI rights, which are essentially human rights to live a happy, equal life without discrimination or hate, India continues to outlaw homosexuality in the form of this archaic and homophobic law.
From Tuesday, the Supreme Court started hearing multiple pleas in favour of decriminalising Section 377, i.e. making non peno-vaginal sex legal.
But this is not the first time an attempt to decriminalise Section 377 has been made in India.
Early efforts and ‘Fire’
- While one of the first efforts to decriminalize Section 377 came about in 1994 when AIDS Bhedbhav Virodhi Andolan filed a petition, substantial efforts to work toward decriminalization surprisingly came into the limelight after right-wing censorship of Deepa Mehta's ‘Fire’ in 1998. The controversial film depicted homosexuality between women in the context of a rural Indian setting.
- Several women’s’ rights groups such as Sakhi and Sangini, one of the earliest forums for LBT (Lesbian Bisexual Transgender) in the country, protested against the ban, bringing for the first time to public discourse the issue of homosexuality, especially between women.
- In 2001, Naz Foundation filed the first important petition against Section 377, challenging its constitutionality. The case was dismissed by the Delhi High Court in 2004.
Decriminalisation – Recriminalisation
- Post 2004, however, the LGBTQI movement in India gained steam. By 2006, several organisations like ‘Voices Against 377’ and other LGBTQI activists joined the petition. Several affidavits were filed. The noise made by the activism forced the Supreme Court to order Delhi HC to again hear the case.
- In a landmark decision, The Delhi HC decriminalized Section 377 in 2009, ruling that consenting intercourse between two adults was not illegal. The verdict was hailed by the LGBTQI community as well as several members of the civil society such as academicians and mental health professionals.
- However, the verdict was challenged by Suresh Kumar Koushal, an astrologer who along with 15 other petitioners, moved the SC against the Delhi HC order.
- Ruling in favour of Koushal, the SC dismissed the 2009 Delhi HC verdict, thus once again making unnatural sex a criminal offense. The reversal of the verdict led to widespread protests across India. LGBTQI activists observed the day as ‘Global Day of Rage’. The verdict was criticised by the Indian as well as international intellectual society and global human and LGBTQI rights groups.
- However, in recent years, two important Supreme Court judgments have helped the anti-377 movement to get back on track.
- In 2014, in what later came to be known as the NALSA judgement, the SC accorded the transgender community of Indian the right to be called the third gender, separate from male and female. This meant that a transgender person could now seek legal, political and economic rights and also seek remedy against discrimination.
- The NALSA judgement is recognised as a major step toward emancipation of the LGBTQI community in India. It led to a reopening of the conversation regarding homosexuality and community, with several prominent members of the community coming out in support of the cause.
- In the same year, a group of LGBTQI activists and celebrities including celebrated dancer Navtej Singh Johar filed petitions against 377. In 2016, Singh’s petition was forwarded to a Constitutional Bench for hearing.
- The second landmark judgement in terms of LGBTQI rights came in 2017 when in response to a petition, the SC ruled that ‘right to privacy’ was a fundamental right. This was important to the fight against Section 377 as it was directly at loggerheads with the legally protected right to privacy that every Indian citizen now had a claim to.
- In 2018, as petitions mounted, Singh’s petition was assigned to the Constitutional Bench and a five-judge bench started hearing the case. Other influential members such as Chef Ritu Dalmia, hotelier Keshav Suri were also petitioners in the case.
While the SC started deliberations on the matter from Tuesday, it is yet to be known whether the long journey of LGBTQI activism in India will bear fruit.
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