Rainbow At The End Of The Tunnel - Pivotal Judgment By SC On Section 377

In the historic judgement, Supreme Court on 6th September, 2018 scrapped the controversial Section 377 of Indian Penal Code, 1860, a 158-year-old colonial law on consensual homosexual sex. The Supreme Court reversed its own decision laid down on February 2016 and said Section 377 is irrational and arbitrary. “377. Unnatural offences—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.”

“LGBT (Lesbian, Gay, Bisexual and Transgender) Community has same rights as of any ordinary citizen. Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution. Criminalising gay sex is irrational and indefensible,” said Chief Justice Dipak Misra, who headed the five-judge bench of Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra and himself. Historical reference points are important for any community’s sense of self, and queer Indians are no different.

In a world that favours cisgender and heterosexual (cishet) ways of living, two things happen. First, people who are queer are put through various phases of self-doubt and discrimination. Second, cishet people are unable to examine the role they play in structurally oppressing LGBTQ folks.

According to research by the Gay and Lesbian Vaishnava Association (GALVA), it was around 3102 B.C. (during the Vedic Age) that homosexuality or non-normative sexual identity was recognised as “tritiya prakriti”, or the third nature. It’s 1862 when Section 377 of the Indian Penal Code came into force. Drafted by Thomas Babington Macaulay, then head of the Law Commission, it is based on Britain’s own former anti-sodomy laws, and archaic 19th century Victorian morality. This section criminalises any form of sexual activity “against the order of nature”, and can be used at any time to harass and incarcerate same-sex couples. The All-India Hijra Conference was called in 1981. Around 50,000 members of the community travelled to Agra to attend it. In 1987, Leela and Urmila, two policewomen from Madhya Pradesh, married each other in the first ever documented case of its kind. Sadly, after the ceremony, both women were discharged from duty. In 1992, a conference on AIDS and health care was hosted in New Delhi, but it didn’t engage with the health of men who have sex with men. And that’s when it became the site of the first protest for the rights of gay men.

The ‘90s also saw the emergence ‘women-loving-women’ in India. This was when activist and academic Gita Thadani set up Sakhi, a women’s helpline and lesbian resource centre which facilitated cross-country networking between queer women. While LGBTQ people had managed to stay under the radar for the most part, it was in 1994 that someone with political clout actually expressed their contempt. A communist activist named Vimla Farooqi wrote to the then Prime Minister P. V. Narasimha Rao to stop a gay men’s conference in Bombay. In the same year as Farooqi’s letter, the Humsafar Trust was founded in Bombay, by none other than Ashok Row Kavi. One of the oldest LGBTQ organisations, it started out doing HIV/AIDS prevention advocacy, and today does various outreach programmes for the entire LGBTQ spectrum in several Indian cities. Just as religious and ethnic minorities or people from certain economic classes are routinely denied accommodation by prejudiced landlords and homeowners, so too were trans and gay Indians. That’s why between 1998 and 1999, G.H.A.R (Gay Housing Assistance Resource) was founded in Bombay by Sachin Jain.

It set out to help LGBTQ Indians find safe living spaces, without having to worry about constant discrimination, from landlords and other tenants. Operations moved onto Facebook in 2012 and are still in full swing. It was 2001 when Naz Foundation and The Lawyer’s Collective filed the first petition against Section 377, asking for it to be read down, on the grounds that it was discriminatory to queer people, and also hampered HIV/AIDS intervention programmes. In 2003, the multi-organisation group called Voices Against 377 was formed. One of the first things they did was publish the report “Rights for All: Ending Discrimination Under Section 377”. The 60-page document extensively covers issues like sexuality and mental health, human rights violations, sex reassignment and more. Back in 2006, India’s influential elite sent an open letter demanding that Section 377 be scrapped. Among these were people like author Arundhati Roy, Nobel laureate Amartya Sen, poet Vikram Seth, and journalist Rajdeep Sardesai. The country’s first queer-oriented radio project was launched in September 2013. Called QRadio, and based out of Bangalore, it “voices the advocacy, activism and lifestyle dialogue of the LGBT community.”

Late in 2015, Gaysi Magazine published a first-of-its-kind illustrated anthology about queerness, featuring colourful, moving, powerful artworks from over 30 artists. In July 2017, trans activist Joyita Mondal was appointed to bench of the National Lok Adalat (an alternate legal redressal mechanism) in the Uttar Dinajpur district of West Bengal. And it’s major step for the community to have a representative in a state body like this. Over the years Section 377 has been very contentious and has been challenged in Supreme Court and High Court. In 2001 Naaz Foundation challenged 377 in Delhi High Court by filing a petition to allow homosexual relations between consenting adults. The historic judgement on section 377, which decriminalises consensual sexual acts between adults was passed in 2009 by the then Chief Justice of High Court Ajit Prakash Shah and Justice S.Muralidhar.

On December 11th, 2012 a panel of two Supreme Court judges overturned the decision that the High Court had given in 2009. The judgement stated that the power to amend the law was with the Parliament and not the High Court, thus, their (High Court’s) judgement was outside the bounds of their jurisdiction. Thus, the Supreme Court recommended that the Parliament address the matter because only they had the power to amend the existing laws. In a 2013 judgment, the two-judge bench of justices G S Singhvi and S J Mukhopadhaya had argued that in 150 years, less than 200 persons had been prosecuted under Section 377. In January 2018, a SC bench headed by CJI Dipak Mishra asked 2013 rulings to be reconsidered & sent it to a larger bench. In view of the judgement, it is declared that insofar as section 377 criminalises consensual sexual acts of adults, however clarified that such consent must be free consent, which is completely voluntary in nature and devoid of any duress or coercion, the section stands read down.

The declaration of the aforesaid reading down of section 377 shall not, however, lead to the reopening of any concluded prosecution but can be relied upon in all pending matters whether they are at the trial, appellate or revision stages. The provisions of section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality. “The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India,” said Asmita Basu, Programmes Director, Amnesty International India. “The remarkable victory today is a milestone in the three decade old struggle by the LGBTQ community and their allies in India,” she added. Shashi Tharoor commented on the judgment “So pleased to learn that the Supreme Court has ruled against criminalising sexual acts in private. This decision vindicates my stand on Section 377 and on exactly the same grounds of privacy, dignity and constitutional freedoms. It shames those BJP MPs who vociferously opposed me in Lok Sabha”. To build a truly democratic and plural India, we must collectively fight against laws and policies that abuse human rights and limit fundamental freedoms.

This is why we, concerned Indian citizens and people of Indian origin, support the overturning of Section 377 of the Indian Penal Code, which punitively criminalizes romantic love and private, consensual sexual acts between adults of the same sex. Activists had been fighting the ban since the 1990s, suffering several court reverses before the verdict, that sparked celebrations among lesbian, gay, bisexual and transgender groups across the country.