Essay on Decriminalisation of Section 377: Big Relief to LGBTQ Community in India

In a landmark judgement for the LGBTQ (Lesbian, Gay, Bisexual, Transgender and Queer) community in the country, the Supreme Court (SC) lifted a colonial-era ban on gay sex in September, 2018. It was a big relief to the members of this community as they had been discriminated against and harassed by the police and others for a very long time. A five judge Constitution bench headed by the Chief Justice of India (CJI) Dipak Mishra gave its verdict after hearing various stakeholders for four days, including gay rights activists. Besides the CJI, the bench comprised Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

It termed the part of Section 377 of the Indian Penal Code (IPC) which criminalises “unnatural” sex as irrational, indefensible and manifestly arbitrary. The SC of India cited certain reasons in the support of its judgement. Firstly, fundamental rights of citizens cannot be taken away by the societal morality. Secondly, bodily autonomy is individualistic and a matter of choice. It is a part of the dignity of a person. Thirdly, the LGBTQ community needs hope for the sake of humanity. They should be allowed to live with dignity and without pretence. Fourthly, prejudicial perceptions deeply ingrained in the social mindset should be forgotten. The time has come to empower the LGBTQ community against discrimination. Finally sexual orientation is biological and innate. Such persons have no control over who they get attracted to. Any repression will be a violation of free expression. The other judges gave concurring judgments with similar reasons, setting aside the apex court’s own verdict in an earlier case, by decriminalising homosexuality for consenting adults.

The litigation for decriminalising homosexuality began in February 2001, when the Naz Foundation (India) Trust, an NGO that works on HIV/AIDS as well as sexual health and others filed a Public Interest Litigation (PIL) in the Delhi High Court (DHC) challenging Section 377 of the IPC. It said that this law is against the Right to Privacy (Article 21 of the Constitution). The petition questioned the legislative intent as being arbitrary and outdated and said that the effect of the law is discriminatory on the basis of sexual orientation. Hence, it is also violation of Article 14 of our Constitution.

The DHC gave its judgment after more than eight years by decriminalizing consensual acts among same sex persons in private. However, this verdict was overturned by the Supreme Court in December 2013. The reason given was that only Parliament had the power to change a law. Ultimately, in April 2014 the court agreed to hear a curative petition (the last legal remedy) by the Naz Foundation (India) Trust. In an interim ruling in August 2017, the SC ruled that sexual orientation is an essential attribute of privacy and thus part of fundamental rights. In 2018, the SC transferred the case to a five member Constitution bench. Finally, the Constitution bench declared as illegal the part of Section 377 regarding homosexuality for consenting adults.

The SC court’s landmark observations have kindled hope among members of LGBTQ community that very soon they can seek marriage registration, adoption and maintenance rights as well as family insurance policies for same sex partners. However, there are still some challenges ahead for the LGBTQ community to be accepted fully in Indian society, which is still highly traditional in nature. It is important that parents/teachers fully understand their ward’s situation and guide them accordingly. Therefore, not only children but grownups or adults need more education and sensitization as far as matters related to sex are concerned. Law enforcement agencies such as police also need sensitisation so that they can appreciate the concerns of LGBTQ people.

Similarly, our film fraternity and media are required to be more considerate while depicting such people in their films and shows respectively. In fact, they can play a very important role in imparting knowledge and disseminating information about the LGBTQ people and their sexual choices so that society could get a real picture of their situation and conditions. India, in the 21st century, is trying to become a super power and the world leader, but this potential would not be realized until and unless we as a society will not be able to freely accept and discuss taboo issues such as homosexuality. And now the SC verdict has opened a window for the LGBTQ community to seek dignity in every sphere of life.