Decriminalization of Homosexuality : Sec 377

In a historic judgment, the Supreme Court of India on choice of a partner was part of the fundamental right to
September 6, 2018 decriminalised homosexuality in privacy.
India. A five-judge constitution bench led by Chief Justice When the movement started?
Dipak Misra and comprising Justices AM Khanwilkar,
In 1991, several LGBTQ members joined hands to initiate
DY Chandrachud, RF Nariman and Indu Malhotra gave
a movement to repeal Section 377. The movement was
four separate but concurring judgments on the matter.
spearheaded by AIDS Bhedbhav Virodhi Andolan which
The bench had also partially struck down the colonial era
published a book titled, ‘Less than Gay: A Citizen's Report’,
provisions of Section 377 of the Indian Penal Code (IPC)
listed out the problems with section 377 and demanded for
and restored the landmark Delhi High Court judgement that
its repeal. As the case prolonged over several years, the
had decriminalised homosexuality way back in 2009. The
next level of revive was done made by NGO which filed
bench diluted the controversial section to exclude all kinds
PIL in in the Delhi High Court in 2001. The case sought
of adult consensual sexual behaviour. With the landmark
legalisation of homosexual intercourse between consenting
judgement, we need to understand the entire scenario of the
adults. The Delhi High Court gave a historic judgement on
sensitive matter.
July 2, 2009, legalizing consensual homosexual activities
What is LGBTQ? between adults. But once again there was roadblock, when
LGBTQ stands for lesbian, gay, bisexual, and transgender. Supreme Court struck down the judgement as a result
It was used to replace the term gay in reference to the LGBT Section 377 was reinstated with full force. The Supreme
community beginning in the mid to late 1980s. The activists Court was further very specific that this was not the end
believed that the term gay community did not perfectly of the debate and it asked parliament to take a decision
represent all those to whom it referred. Later the initials on whether Section 377 should be repealed or not. In
were adopted into the public as a complete umbrella term response, the Union Government filed a review petition on
for use when naming topics pertaining to sexuality and 21 December 2013 stating that the judgement was violating
gender identity. The letter Q for those who identify as queer rights under article 14, 15 and 21 of the Constitution.
or are questioning their sexual identity. Conclusion
What is Section 377? The Supreme Court unanimously ruled that Gay sex
The Chapter XVI, Section 377 of the Indian Penal Code among consenting adults is not a criminal offence. The
(IPC) 1860 was introduced during the British rule of India. bench maintained that it is a part of a 158-year-old colonial
The section criminalises sexual activities "against the order law that criminalised it, violated the constitutional right
of nature." The act defines says whoever voluntarily has to equality and dignity. It unanimously held that the
carnal intercourse against the order of nature with any man; Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ)
woman or animal shall be punished with imprisonment for community possess the same constitutional rights as other
life, or with imprisonment of either description for a term citizens of the country. It termed sexual orientation as
which may extend to ten years, and shall also be liable a "biological phenomenon" and "natural" and held that
to fine. The ambit of Section 377 extends to any sexual any discrimination on this ground was violative of the
union involving penile insertion. Thus, even consensual fundamental rights. It ruled that it is declared that insofar
heterosexual acts such as fellatio and anal penetration may as Section 377 criminalises consensual sexual acts of adults
be punishable under this law. in private, is violative of Articles 14, 15, 19, and 21 of the
Why it was opposed? Constitution. It is, however, clarified that such consent must
be free consent, which is completely voluntary in nature,
LGBTQ activists claimed that Section 377 discriminated
and devoid of any duress or coercion. The bench also
them solely on their sexual orientation. They term that it
said that homosexuality was not a mental disorder, but a
has violated the right of the LGBTQ community to “equal
completely natural condition.
citizenship and equal protection of laws.” Besides, the
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