Updated: Jul 29, 2020

[Authored by Vidhathri Mysore, 2nd year BA LL.B (Hons.) student at CHRIST (Deemed to be University), Bangalore and Saumya Adhana, 2nd year BBA LL.B (Hons.) student at Army Law College, Pune.]

We have often come across families pushing their kids or loved ones into ‘treatments’ such as therapy, when they come out with their gender identity. A sad reality as it is, this is generally the scenario all over the world especially in backward, developing nations. India is no exception to this. However, there was a breakthrough one fine day (Sept 2018) when the Supreme Court ruling finally arrived- homosexuality had been decriminalised.

Now let us look into the legal implications and the analysis of the infamous Navtej Singh Johar case. As it exists today in Chapter XVI of the Indian Penal Code, Section 377 states:

“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.

Explanation — Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

In order for us to fully understand why this was such a big issue, we need to go back to British India, or the 19th century India, when laws were being drafted and various statutes and legislations started coming into existence.  Thomas Macaulay, taking inspiration from The Buggery Act of 1533 enacted under King Henry VIII, and created this section (section 377) in 1838, however it was only brought into effect in the waking light of sepoy mutiny in 1857.[1] This law defined ‘buggery’ as an unnatural sexual act against the will of God and man. Macaulay later drafted the Buggery Act into the IPC of 1960 and it has survived as Section 377. Thus, this criminalized anal penetration, bestiality and in a broader sense homosexuality. In 1828, this act was replaced with the Offences Against Persons Act, 1828, which had a broader definition for what constituted unnatural sexual acts, which gave way for easier prosecution of the offenders.  This act is what is considered to be the inspiration for Section 377 of the Indian Penal Code.

Section 377 has been scrutinized over and over again, but the year 2001, was perhaps when the whole process became a movement where, people of the LGBT community, as well as citizens of the country and lawyers, came together to stop this once and for all, by petitioning for the decriminalization of Section 377 of the IPC (Indian Penal Code). In the Delhi High court, a non-governmental foundation, by the name of Naz foundation filed a lawsuit in 2001, seeking legalization of homosexual intercourse between consenting adults.[2] They argued that section 377 was unconstitutional in nature and discriminatory. Unfortunately, the court refused to take in their petition, saying they had no locus standi in the said matter. They then appealed to the Supreme Court of India against the decision given by the Delhi High Court. The Supreme Court decided that Naz Foundation had the standing to file a public interest lawsuit in this case, and sent the case back to the Delhi High Court to reconsider it on the merits. [3]

The case which went on till 2009, and on 2nd July, a hearing before a bench comprising Chief Justice Ajit Prakash Shah and Justice S. Muralidhar began. Taking into account Articles 14, 15 and 21, the bench gave a verdict by declaring sec 377 unconstitutional insofar it only criminalized consensual sexual acts of adults in private, however they did not strike down the entire section, as they kept intact the provision wherein the  non-consensual non-vaginal intercourse and intercourse with minors, was still considered a criminal offence. Even though this may not seem like any great victory, it was a sure shot improvement in the way the Indian legal system worked. Post this iconic judgement, there were victory shouts and hoots, people hugging each other, couples finally being able to enjoy their life to the fullest, it was indeed a sight to see. That being said, the fight of the LGBT community still had a long way to go, with the 2009 verdict paving the way for the future.

Like all stories, there was a twist that came along in this matter, by way of the 2013 judgement that struck down the 2009 judgement, thus denying millions of Indian gay, lesbians, bisexuals and transgenders the very existing as speaking subjects. [4]The Court, in a matter of speaking, took away their right to make decisions about their intimate life and the right to love. This, however, was not something new in the Indian Judiciary, because the courts constantly gave judgements that went against previous judgements, making people question their integrity and stance, whether they even wanted to make people’s lives better or just torture them further. Soon after, curative petitions were filed, along with which 5 people filed a writ petition to scrap the section insofar as the criminalization of consenting sex between same-sex individuals; the petitioners who filed the petition said that they were deeply aggrieved by sec 377 of the IPC and they argued that this section was a definitive violation of their fundamental rights, one amongst whom was Navtej Singh Johar, a dancer by profession. When the petition was placed before the division bench constituted of Justice S.A Bobde and Justice A.K Bhushan (2016), an order was passed to post the matter before the former Chief Justice of India, Justice Deepak Mishra. In 2018, the case, Navtej Singh Johar v. UOI[5], was heard by a five-judge bench, which gave its verdict in September 2018. The court held unanimously that parts of sec 377 relating to consensual sexual acts between adults as unconstitutional. [6] The court further upheld that all the members of the LGBT community were protected under the law, were entitled to equal citizenship, without ANY discrimination. The court also overruled the 2013 Suresh Koushal case. [7]

There have been more developments in this area, however, the LGBT community all across the world still have to keep proving that they are like other normal people, that there is nothing wrong with them. Change is something that requires a lot of effort, and the world is slowly coming out of its shell of ‘narrow mindedness’, unfortunately, we still have a long path to tread in order to accommodate and adapt to all the changes that constantly keep taking place in this ever-growing world.

[1] Prabhash K Dutta, Section 377: How Buggery Act of King Henry comes a full circle in Supreme Court, India Today, (September 6, 2018), www.indiatoday.in/india/story/section-377-history-supreme-court-1333075-2018-09-06. [2] Naz Foundation v. Govt of NCT of Delhi, 160 Delhi Law Times 277. [3] Sheela Bhatt, Gays rights is matter of public interest: SC, Rediff.com, (February 03 2006), us.rediff.com/news/2006/feb/03gay.htm?q=tp&file=.htm. [4] Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1. [5] Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. (06.09.2018 - SC) : Writ Petition (Criminal) No. 76 of 2016, Writ Petition (Civil) No. 572 of 2016, Writ Petition (Criminal) Nos. 88, 100, 101 and 121 of 2018. [6] Jeffrey Gettleman, Kai Schultz and Suhasini Raj, India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says, The New York Times, (September 6, 2018), www.nytimes.com/2018/09/06/world/asia/india-gay-sex-377.html. [7] Supra note 5.

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