Updated: Jul 31, 2020
Section 377 of the Indian Penal Code represents a section of the Indian Penal Code introduced in 1861 during the British rule of India. Accurately modeled on the Buggery Act of 1533, it makes sexual activities "against the social order of nature" illegal.
In the landmark decision the Supreme Court has finally struck down a 19th-century law criminalizing homosexuality in India.
The five-judge bench in a unanimous decision reasoned that discrimination based on sexual orientation violates the right to equality, that criminalizing private consensual sex between competent adults was violative of the right to privacy, dignity, and freedom of expression under article 21 and the fundamental rights cannot be denied on the ground that they merely affect a small section of the society. They found that section 377 discriminates against individuals based on their provocative orientation and gender identity, violating article 14 and 15 of the constitution. Justice Malhotra concluded by stating that history owes an apology to the LGBTQ community for the delay in upholding their right.
‘‘Section 377, to the extent it criminalizes provocative act between consenting adults, whether the homosexual or heterosexual is unconstitutional’’ said by chief justice Misra and Justice Khanwilkar in their judgment.
The timeline of the battle against section 377 in India, which was started over 20 years back in as follows:
AIDS Bhedbhav Virodhi Andolan (ABVA), an organization fighting discrimination against those affected by HIV or AIDS released a document describing the experiences of homosexual people in India. The 70-page document revealed the extent of blackmail, extortion, and violence the homosexual people faced especially at the hands of the police.
The report called for a repeal of the legislation and law including section 377 that discriminates against the members of the LGBTQ community. But when the report was released at the press club of India, journalists were reportedly so embarrassed; they didn’t highlight a sole question.
Inspector general of the Tihar jail in Delhi, Kiran Bedi, refuses to provide condoms for intimates saying it would encourage homosexuality, besides admitting that inmates indulge in it, which gave rise to a controversy. In response, a writ petition was filed in the Delhi High Court by ABVA, demanding that free condoms be provided and that section 377 be recognized as unconstitutional. Despite retaining long-running efforts to mobilize support, the petition is ultimately dismissed in 2001.
Public interest litigation (PIL); was filed in the Delhi High Court by The Naz Foundation, a sexual health NGO working with homosexual men, challenging the constitutionality of section 377; calling for the legalization of homosexuality.
The case was dismissed by The Delhi High Court, stating that there are no causes of action, and the court cannot examine the purely academic issues. A few months later petition filed by Naz Foundation was also dismissed.
A special level petition for the case was filed by The Naz Foundation; it was reinstated in the Delhi High Court by the Supreme Court, citing the fact that it is an issue of civic interest. An affidavit against the decriminalization of homosexuality was filed by India’s ministry of the home affair, while in the coming months voices against 377, a coalition of NGOs, join the petition.
Saying that section 377 violates the fundamental rights to life, liberty, and equality as enshrined in the Indian constitution, the bench at Delhi High Court consisting of Chief Justice Ajit Prakash Sudh and Justice S Muralidhar, in their landmark judgment, decides to strike down section 377.
The LGBTQ community suffers a significant blow when the supreme court overturns the judgment the Delhi high court’s judgment, saying section 377 “does not suffers from the vice of unconstitutionality and declaration made by the division bench of the high court is legally unsustainable.”
A writ petition was filed in the Supreme Court challenging section 377 by Navtej Singh Johar, an award-winning Bharatanatyam dancer along with four other high-profile Indians, including Chef Retu Dalmia and hotelier Aman Nath.
The Petition that was heard against India’s biometric program aadhaar unanimously rules that privacy remains a fundamental right, by a nine-judge Supreme Court bench. In its judgment the court states that “Sexual orientation represents the essential attribute of privacy. Discrimination against an individual based on provocative orientation is deeply offensive to the dignity and self-worth of the individual,” raising the hope of those campaigning against section 377.
Another top hotelier Keshav Sur spearheads the fight, who identifies as gay, and files a petition in the Supreme Court.
A five-judge bench of the Supreme Court, including chief justice Dipak Misra, begins the petitions presented by Johar and others against section 377. While proponents of the law claim the spread of sexually transmitted diseases and argue for the disintegration of India’s social fabric to sustain it, many justices offer encouraging comments. “It is not a historical aberration but a considerable variation,” wisely said by Justice Indu Malhotra.
In the absolute judgment, the Supreme Court decides to scrap the section 377. Which chief justice Misra describes as “irrational, indefensible and manifestly arbitrary,” marking a successful end to a long struggle for justice.
This judgment was rendered by the five-judge bench of the Supreme Court. Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud and Justice Indu Malhotra authored four concurring judgments.