September 6, 2018, was indeed a historic day for the LGBTQ community in India. On this day, a five-judge Constitution Bench of the Supreme Court of India passed a judgement of epic proportions to repeal the provisions of Section 377 of the Indian Penal Code (IPC) and thereby decriminalising consensual same-sex relations. People all over the country expressed their jubilation at what seemed like a revolutionary transformation at the core of India’s orthodox mentality, but achieving this feat was not an overnight task. Since the beginning of this millennium, efforts were being made by the proponents of homosexuality to do away with the parochial terms of Section 377, and after numerous failures and disappointments, the country finally took a huge step forward in the path of liberalism and a free society.
It is not wrong to claim that the condemnation of homosexuality as ‘against nature’ is a prerogative of the Judaeo-Christian environment because in the world depicted through ancient Hindu scriptures and texts, queer behaviour has never been a punishable or heinous crime. In fact, ancient Hindu literature has many sexually ambiguous characters and instances of gender variation, even including the presence of a third gender. The hero of the epic Mahabharata, Arjun was cursed to spend a year of his life as a eunuch, named Brihannala. Many Hindu deities have been represented as both male and female in different time periods or depicted as having both masculine and feminine characteristics. The issue of morality has never been explicitly mentioned in religious texts, and in many cases, certain heterosexual acts were punished more severely. Homosexuality and queer behaviour were never stated as ‘unnatural’. Many centuries later, during the Mughal rule in India, many emperors and nobles were known to have ‘fluid sexuality’. Emperor Babur openly wrote in his memoirs of his agonising suffering for the love of a boy whom he had to leave to pursue his political ambitions. All of this makes the taboo associated with ‘unnatural’ relationships a modern phenomenon, and that is indeed so.
The classification of sodomy and same-sex relations as a crime was introduced after the British rule descended on the country, a legacy that they had introduced in over 40 colonies all over the world. The Buggery Act passed in 1533 outlawed homosexuality in Great Britain, and along the same lines, Section 377 of the IPC was enforced in India in 1861. Of course, this statute persevered even after the British left the country in 1947 and decriminalised homosexuality in 1967.
The first steps to remove Section 377 were taken by the Naz Foundation Trust, an NGO, which filed a lawsuit in the Delhi High Court in 2001. A long-drawn legal battle thus ensued, the Naz Foundation v. Government of NCT of Delhi, which is widely considered as a landmark event in the battle for LGBTQ rights. The most prominent argument put forward by the petitioner was that the discrimination and harassment faced by the community as a result of this law violated many provisions of the Constitution of India, including the right to equality, the right to life and liberty, the right to privacy, the right to non-discrimination, and the right to health among others. As respondents, the Ministry of Home Affairs (MHA) and the Ministry of Health and Family Welfare submitted legal opinions on the matter, but by a surprising twist of fate, the two ministries opposed each other through their contradictory affidavits. While the MHA argued for the retention of Section 377 on many grounds, the latter submitted evidence in favour of the Naz Foundation’s plea that the existence of the law is counter-productive to measures for HIV/AIDS prevention and treatment. Finally, the High Court passed a remarkable judgement in 2009 summed up as “Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”.
A historic victory for the LGBTQ community in India, it did not last for long and the judgement of the High Court was overruled in 2013 by a 2 judge Supreme Court bench in the Suresh Kumar Koushal and another v. Naz Foundation and others case. The Delhi High Court verdict was challenged by individuals and organisations who ‘wished to protect the moral, cultural and religious values of Indian Society.’ They argued that the right to privacy does not include the right to commit an offence. The Supreme Court ruled that only the Parliament, and not a High Court, has the authority to declare Section 377 as unconstitutional. The Parliament had the opportunity to revise the law after drafting the Constitution for independent India and chose not to do so, thus establishing the constitutionality of the same. It further said that Section 377 only divides people on the basis of whether or not they engage in “carnal intercourse against the order of nature”; there is no explicit mention of homosexual or transgender people. The SC also stated that “a minuscule population of the country constitutes lesbians, gays, bisexuals or transgenders” and that the High Court in its ruling had been overly influenced by changing social norms and similar judgements in foreign courts. In view of all of the above reasons, the constitutionality of Section 377 was upheld by the SC ruling, and same-sex relations were criminalised.
This ruling came under fire from the central government (led by the Indian National Congress), celebrities, eminent personalities and world leaders. A little over two years later, five people, all members of an LGBTQ community filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377. Dancer Navtej Singh Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur became the first group of people to argue that they had been personally aggrieved by the law, and alleged it to be an outright violation of fundamental rights. The opposition to these petitions was led by Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries. The ruling NDA government took a neutral stance.
The Navtej Singh Johar and others v. Union of India case was heard by a five-judge constitution bench of the Supreme Court, which included the then Chief Justice Dipak Mishra. This ruling by the Supreme Court overturned its own ruling in the Suresh Kumar Koushal and another v. Naz Foundation and others case by declaring all consensual acts engaged in private by adults as legal. Parts of Section 377 relating to sex with minors, non-consensual acts and bestiality remained in force, but criminalising consensual sexual acts between any two adults, even of the same gender, was pronounced as “irrational, arbitrary and manifestly unconstitutional”, in the way that it violated the right to equality held under the Constitution of India. This historic judgement, giving the LGBTQ community the entitlement to equal citizenship and indiscriminate protection under the law, drew silent treatment and even criticism from some people and groups, but on the whole was welcomed with jubilation by citizens, domestic and global human rights organisations and the United Nations. Pride marches were conducted all over the country, and people embraced their fellow countrymen in the joy of this ruling which was a huge leap forward from a social and humanitarian point of view.
Just short of two years since the ruling, and the country has seen a huge change in the legal treatment of the LGBTQ community. However, the prejudice against this community which has been a norm for so many years is difficult to change in such a short span of time, and in numerous places, they still face humiliation and non-acceptance. But with a steadily growing support group and an equal legal standing, we can certainly hope that within a few years, the LGBTQ community will be accepted as readily as they were in ancient times.