DECRIMINALIZATION OF HOMOSEXUALITY IN INDIA

Sehar Rauf

ABSTRACT

This article traces the history of section 377 of IPC and how it got partially decriminalized by the Supreme Court. It provides a detailed analysis of the rights of LGBT community related to this revolutionary judgment.

This article also talks about the status decriminalization of homosexuality at international level at different countries. Finally it deals with the question that whether this judgment is enough for the community.

INTRODUCTION

On September 6, 2018, a historic judgment was made by the Supreme Court of India which decriminalized Section 377 of Indian Penal Code. Supreme Court ruled that consensual adult gay sex is not a crime.The verdict originated a sense of inclusiveness among those members.

The landmark decision was given by a bench consisting of chief justice Dipak Misra and justices DY Chandrachud, AM Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman in Navtej Singh Johar v. Union of India[1].

HISTORY

Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1861 during the British rule of India. It was modeled on the Buggery Act of 1533 which defined ‘buggery’ as an unnatural sexual act against the will of God and man[2]. Thus, this criminalized anal penetration, bestiality and in a broader sense homosexuality.

In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of rapists, but also homosexuals.[3]

LEGAL BATTLE

The legal battle for decriminalising homosexuality first began in 1994 when AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition in the Delhi High Court challenging the section’s constitutionality. Since ABVA failed to follow through with the petition, it later got dismissed[4].

In 2001, Naz Foundation (India) Trust, a non-governmental organization challenged Section 377 in the Delhi High Court by filing a lawsuit to allow homosexual relations between consenting adults. They argued that Section 377 should only be applicable to non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. However in 2003, the High Court dismissed the case, stating that the Naz Foundation had no standing in the matter (locus standi).

The Delhi High Court Verdict of 2009

The Naz Foundation appealed this dismissal by the High Court to the Supreme Court, which concurred with them, and instructed the High Court to reconsider the case. This led to the historic judgment in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, which decriminalized consensual sexual acts between adults. Furthermore, this judgment was to be in force until the Parliament decided to amend Section 377.

With this, sexual activities in private between two consenting adults, irrespective of their sexual orientation were no longer a criminal offence[5].

Further fight in SC and Parliament

Various appeals were made to the Supreme Court, challenging the High Court’s authority to change a law.

On December 11th, 2013 a panel of two Supreme Court judges overturned the decision that the High Court had made in 2009. The judgment stated that the power to amend the law was with the Parliament and not the High Court, thus their (High Court’s) judgment was constitutionally unstable[6]. Thus, the Supreme Court recommended that the Parliament address the matter because only they had the power to amend the existing laws.

Congress MP Shashi Tharoor had introduced a Private Member’s Bill in the Parliament in 2015, which was in tune with the 2009 Delhi HC judgment. The bill was voted down by the Parliament that sought to decriminalise homosexuality.

This fight against Section 377 was set back on the track in 2014, when a two-judge bench passed the famous NALSA (National Legal Services Authority) judgment by which the members of the transgender community were given the right to be called the third gender[7].

Positively, the Supreme Court’s landmark 2017 judgment on the right to privacy as a fundamental right propelled the fight against section 377 even further as it included sexual orientation[8].

In 2018, a total of five people filed a petition to an apex court asking to re-look the judgment passed in the case of Naaz Foundation which was heard by a three-member SC bench and claimed that the section violated Article 14, 15, 19 and 21 of the Constitution.

Finally, on September 6, 2018, India bid adieu to the 150-year old rule, thereby decriminalising homosexual activities between consenting adults[9].

Only partial dilution

Supreme Court diluted Section 377 of Indian Penal Code to exclude all kinds of adult consensual behavior.

The law will still stand on the statute book to deal with unnatural sexual offences against minors and animals such as sodomy and bestiality.

STATUS AT INTERNATIONAL LEVEL

There are 73 countries – mostly in the Middle East, Africa and Asia – where homosexual activity between consenting adults is illegal. And in some nations where homosexuality has been decriminalized, LGBT people can still face violence, arbitrary arrest, imprisonment and torture, according to Amnesty International.

There are currently eight countries, in which homosexuality is punishable by death. These are Iran, Sudan, Saudi Arabia and Yemen; parts of Somalia and northern Nigeria, under sharia law.

Russia’s “gay propaganda” law, which prohibits the “promotion” of homosexuality among minors, has been widely criticized for fuelling homophobia in the country.Since it was adopted in 2013, the law has been used to detain LGBTI activists and to stop pride marches. Similar laws are also in place in 18 other countries.

Positively, only five countries in the world – Bolivia, Ecuador, Fiji, Malta and the UK – have constitutions that explicitly guarantee equality for citizens on the basis of sexual orientation as well as gender identity.Five countries – Mexico, New Zealand, Portugal, South Africa and Sweden – have constitutions that provide protections based on sexual orientation.

CONCLUSION AND SUGGESTIONS

Decriminalizing section 377 is a dawn of a new era where targeted people who have suffered psychologically and are subjected to violence and discrimination, are free to enjoy their sexual orientation in their personal space.The recent judgment leads everyone to believe that indeed the Indian Judiciary is a bastion of fundamental rights in the country.

There is still much that remains to be done if the civil rights of LGBT persons are to be protected so that they are fully free or perceived as equal among their fellow citizens. There’s still a long way to go for the over 100 million people –up to eight per cent of India’s population might be LGBT, studies estimate– to be treated as equal citizens in letter and spirit of the law.

REFERENCES

[1](2019) 10 SCC 1.

[2]Jyoti Puri, Sexual states: governance and the struggle over the antisodomy law in India (s.n.) (2016).

[3]From 1861 To 2018: A Timeline Of Section 377 In India The Logical Indian, https://thelogicalindian.com/tli-explains/section-377-timeline/ (last visited Mar 28, 2020).

[4]Timeline: The struggle against section 377 began over two decades ago Quartz India, https://qz.com/india/1379620/section-377-a-timeline-of-indias-battle-for-gay-rights/ (last visited Mar 28, 2020).

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

[6] Suresh Kumar Koushal v. Naz Foundation, (2013) 4 SCC 1.

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

[8]Puttaswamy v. Union of India, AIR 2017 SC 4161.

[9]Section 377: Supreme Court rewrites history, homosexuality no longer a crime The Economic Times, https://economictimes.indiatimes.com/news/politics-and-nation/sc-delivers-historic-verdict-section-377-gone-being-gay-no-more-a-crime-in-india/articleshow/65696771.cms?from=mdr (last visited Mar 28, 2020).