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How These Men and Women in Black Fought for the Rainbow Against Section 377

Credit: Indira Jaising/Twitter

Credit: Indira Jaising/Twitter

In 2001, the Lawyers Collective had filed its first petition in the Delhi High Court in favour of decriminalising Section 377 via the Naz Foundation, a non-profit organisation devoted to LGBTQ rights.

Rakhi Bose
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This story was first published on on September 6, 2018

New Delhi: The nib has been broken on one of the biggest verdicts that the Supreme Court of India has ever passed. Section 377 of the Indian Penal Code, a colonial-era law that penalised consensual 'unnatural' sex and was essentially a tool for criminalising and demonising those with 'deviant' sexuality, has been decriminalised.

But who made this happen? The long and laborious history of the LGBTQ movement is today common knowledge. And that is because of the labours of the Lawyers Collective, the organisation that has for twenty years now led the legal fight to secure the rights of the queer peoples of India.

Speaking to News18 on the eve of the victory, co-founder Anand Grover had exuded confidence about the impending triumph and it was not misplaced as the top court was unanimous that the archaic law was arbitrary and against constitutional morality.

He said the decriminalisation of the section 377 means India is finally ready to shake of the yoke of imperial tyranny and usher in an era of equality.

Grover founded LC in 1981 with his partner and practicing Supreme Court advocate Indira Jaising. According to Tripti Tandon, deputy director of Lawyers Collective, the initial cases that LC took up were involved with securing labour rights.

Consequently, they started to work on environmental concerns and also with marginalised minorities, especially those suffering from HIV/AIDS, and women.

It was only in 1998 that LC started to engage in cases related to LGBTQ rights.

"In the lawyers’ collective, we were doing a lot of work on HIV. And because HIV was associated with ‘gay sex’, a lot of gay men started approaching us,” Grover, who is the Director of LC's HIV wing, told News18.

In 2001, the LC filed its first petition in the Delhi High Court in favour of decriminalising Section 377 via the Naz Foundation, a non-profit organisation devoted to LGBTQ rights.

Arguments started in the case in 2008, and the judgment in favour of the petition was out in 2009, decriminalising Section 377. However, that was not the end of it as in just a few years, the verdict was reversed by the Supreme Court and gay sex was again criminialized in 2013.

"The journey since then has been chequered and has seen many faces changes. Many lawyers joined and left the team. The present team has been working since 2013 till today," Tandon, who was part of the initial team to work on the case, said.

When asked if there was something that the team took away from the experience, Tandon said that that the long-awaited victory was proof that perseverance and persistence for the truth and for justice can never go unrewarded.

The second huge learning, Tandon said, was the fact that wrongs can be corrected.

"In 2013, the Supreme Court erred in its decision in the Suresh Kumar Kaushal case. But the fresh verdict proves that human follies can always be corrected," Tandon said.

The sentiment is shared by Suraj Sanap, who has been working with Lawyers Court since 2013 and has been part of the most crucial phase the LGBTQ movement. Himself a proud queer, Sanap said that the battle for him had been both of social justice as well as personal freedom.

"Much has happened in the last five years that led to this decision. Successive SC decisions to grant legal rights to transgenders in 2014 and then to make Right to Privacy a fundamental right in 2017 helped bring a lot of new faces to the fight," Sanap said, adding that the these decisions were intrinsic to the verdict today.

But what next for Lawyers Collective, now that one of their biggest battles is over?

Tandon responded to the question saying the fight for justice was never over. LC works on a range of constitutional issues including rights of the minorities. It is currently working several other matters such as the adultery case, Sabarimala women’s entry case and Aadhaar and is waiting the response of the constitutional bench's response on the same.

He also said that the collective is working on the constitutional validity of other laws more deeply entrenched in the criminal justice system such as the anti-terror laws, narcotics laws, use of death penalty and more.

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