What is Section 377 of the Indian penal code, the anti-377 struggle, Supreme Court verdict, Major petitioners and timeline of anti-377 struggle. Read below all the things that you need to know.

What is Section 377?

"Section 377 IPC is irrational, indefensible and arbitrary,” the Supreme Court ruled on the September 6, 2018 while striking down the law that has oppressed India’s LGTBQI (L – Lesbian, G – Gay, B – Bisexual, T – Transgender, Q – Queer, I – Intersex) community for more than 150 years. What consenting partners do in their bedrooms should never have been the concern of the state and on this Thursday love finally found its way as the apex court of the country decriminalized sex between consenting adult partners in private under Section 377. This can be seen as India’s second ‘Azadi’ as some of us were till date ruled by the oppressive law enacted by the British in 1861.

“We should indeed keep calm in the face of difference, and live our lives in a state of inclusion and wonder at the diversity of humanity.” - George Takei

Just like lemonade tastes sweeter after an early morning workout, the victory of numerous activists fighting for the rights of the marginalized LGTBQI community in India could not have been sweeter than this as it comes after years of struggle and many setbacks. The recent Supreme Court verdict will always be marked as a supreme verdict as it has awarded the LGBTQI community with their due share of dignity, liberty and fraternity that they were always deprived of. Moreover, we will witness the emergence of a new Indian society where the members of the LGBTQI community can walk with their heads high as equal citizens of India.

Section 377 of the Indian Penal Code states that, “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.” This British law dates back to 1861 and criminalizes sexual activities against the order of nature.

One of the first legal challenges faced by the onerous Section 377 was in 1994 when the NGO ‘ABVA or AIDS Bhedbhav Virodhi Andolan’ filed a petition against it after Ms Kiran Bedi, the then superintendent of Tihar Jail refused to allow health workers to distribute condoms to male inmates. This was when the repression of same-sex love was first put under the spotlight. ABVA laid a strong foundation but was unable to build upon it the castle of liberty and fraternity that it was dreaming of.

While ABVA failed to follow through with its petition leading to it being dismissed in 2001, the Naz Foundation filed the first major case against the tyrannical Section 377 in December of the same year. The two-judge bench of the Delhi High Court dismissed the case in 2004 saying that it was a mere academic challenge to the constitutionality of a legislative provision. Moreover, the review petition was also dismissed.

After the efforts of the Naz Foundation and ABVA, the LGBTQI movement gained stream pan India. The movement was joined by a number of social organisations and activists. Being an audience to this, the Supreme Court ordered the Delhi High Court to hear the case again. On July 2, 2009, the High Court in its landmark verdict in the case of Naz Foundation vs. Govt of NCT of Delhi & Ors, 2009, decriminalised Section 377, stating that consenting intercourse between two adults was not illegal. The two judges bench of Chief Justice Ajit Prakash Shah and Justice S Murlidhar noted that Section 377 as it criminalizes consensual sexual acts of adults in private in contravention of Articles 21, 14 and 15. The verdict was a hailed by the LGBTQI community and also by the intelligentsia of India.

However, the HC verdict was challenged by an astrologer cum journalist named Suresh Kumar along with 15 others in the Supreme Court on July 9, 2009, and on December 11, 2013, a two-judge Supreme Court Bench of Justices GS Singhvi and SJ Mukhopadhaya upheld the appeal by recriminalizing gay sex. Also, the bench left it to the parliament to consider the desirability and propriety of deleting Section 377 IPC. The verdict as expected was criticized all over the world and the LGTBQI activists marked it as a ‘Global Day of Rage’.

Naz Foundation

After the brief period of delight, sorrow again prevailed in the LGBTQI community of India. The Supreme Court ruling as on December 11, 2013, was a major setback for any member or activist for the cause of LGBTQI community of India. But two important judgements by the Apex Court brought the anti-377 struggle back on track.

The First was the NALSA judgement that came in the year 2014. In this judgement, the SC bestowed the transgender community the right to be called the third gender separate from male and female. Transgender individuals in India were now enabled to seek legal, political and economic rights and remedy against any kind of discrimination that they faced. The NALSA order by the Supreme Court (National Legal Services Authority vs. Union of India & Ors) acted as a gateway to the lost issue of homosexuality in the country. In the same year i.e. 2014, Navtej Singh Johar, Indian Bharatnatyam exponent and choreographer filed petitions against Section 377 and two years later in 2016, his petition was forwarded to a constitutional bench for hearing.

The second vital judgement with respect to anti-377 struggle came on August 24, 2017, when a nine-judge bench of the superlative court ruled that the ‘Right to Privacy’ was a fundamental right. The bench said, “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connoted right to be left alone.” The judgement found Section 377 in direct opposition to the legally protected right to privacy and hence unconstitutional.

The two judgements talked about, made a perfect platform for the abolition of the cruel and now unconstitutional Section 377. The petitions after that of Navtej Singh Johar were mounting and as a result, in 2018 Johar’s petition was assigned to a five-judge constitutional bench. The other petitioners include Indian celebrity chef and restaurateur Ritu Dalmia and owner of Bharat Hotels Ltd. Keshav Suri. The key argument presented by the petitioner’s lawyer is that presence of section 377 in the statute makes it very clear that constitutional guarantees of equality, fraternity, dignity, life and liberty would never be extended to them. And finally, on September 6, 2018, it all paid off as Section 377 was no more after this date.

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Photo by Sharon McCutcheon / Unsplash

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The argument calling same-sex relationships as unnatural or against the order of nature is totally impractical as if this was the case then God would not have created such a phenomenon. Section 377 was something that tormented one’s self-confidence and dignity and thanks god that it is done away with. But the question is what the delay was for? 71 is a huge time span, many lives are already ruined and some have entered the brink of it. But taking the positives out of it, many people have been awarded the lost self-belief that they were ought to have in them. The court took 71 years, how much time we as a part of the society requires to understand that it is normal?

Societal acceptance is much more important than legal acceptance. Court has decriminalized homosexuality but have we decriminalized it yet?

Introspect yourself and let the world know.