Section 377 and the LGBTQ Rights in India

In India, the concept of homosexuality has been successfully kept under cover for many years. Living in the 21st century, people in the LGBTQ community are still fighting for their basic rights of equality and acceptance. There is a major issue as the discrimination against the LGBTQ community is highly prevalent in the Indian society where people still consider “gay-sex” a taboo. Even though homosexuality and queer identities have been accepted by the present Indian youth, but within the boundaries of families and homes, acceptance remains a constant struggle for the people of the community. 

The Delhi High Court 2009 Judgement

This section was challenged for the first time in 2001, when the Naaz Foundation, an NGO, approached the Delhi High Court and filed a public interest litigation, seeking legalisation of homosexual activities between two consenting adults. However, in 2003, the Delhi High Court dismissed the petition stating that the petitioners were not in the capacity to appear in the court.

The gay rights activists said that section 377 denied a person’s dignity and criminalised his core identity solely on the account of his sexual preference and thus it violates Article 21 of the constitution. After fighting an 8 years longs legal battle, in 2009, in a victory for the gay rights activist, the Delhi High court decriminalised sex between two consenting adults of the same gender.

The Bench in its 105-page judgement allowing the plea held that Section 377 denies a gay person of the right to full personhood which is implicit in notion under Article 21 of the Indian Constitution.

The 2013 Judgement

In the case of Suresh Kumar Koushal v. NAZ Foundation, the two-judge Supreme Court bench, headed by G.S. Singhvi and S.J. Mukhopadhyaya, overturned the Delhi High Court judgment of 2009 and reinstated Section 377. It was observed that Section 377 need not be struck down as only a small fraction of the country’s population constitute the LGBT community and in more than 148 years, since the implementation of this section, less than 200 people have been prosecuted.

Soon after the judgement was passed, Sonia Gandhi, the President of the then Congress Party, asked the Parliament scrape off Section 377. Other leaders who came in support against Section 377 were Rahul Gandhi, former finance minister Arun Jaitley who said that the Supreme Court should not have reversed the 2009 judgement as millions of people all over the world had alternative sexual preferences. A BJP spokesperson, Shaina NC, stated that her party was in support of decriminalisation of homosexuality and that it was the progressive way to move forwards.

Navtej Singh Johar v. Union of India

6th September, 2018, became one of the most important day for the LGBTQ community as the Supreme Court of India struct down Section 377 and ruled that, consensual homosexual activities between two people would no longer be constituted as a crime. 

Background- On 27th April, 2016, 5 people approached the Supreme Court with a writ petition which challenged the constitutionality of Section 377 and claimed that the issues raised in the present petition varied from those raised in the 2013 Koushal v NAZ case in which the court upheld the constitutional validity of Section 377. This was the first case in which all the five petitioners argued that they all have been directly aggrieved by the law, alleging that it was in direct violation of their fundamental rights.

The petition was place before Justices S.A. Bobde and A.K. Bhushan on 29th June 2016. On 8th January,2018 the case was listed to be heard by the Chief Justice’s bench which passed an order stating that the said case would be heard by the constitution bench.

Judgement- On 6th September,2018, the five-judge bench headed by Chief Justice Dipak Misra pronounced its unanimous verdict and struck down Section 377 of the Indian Penal Code. The Court observed that criminalisation of sexual acts between two consenting adults violated their right to equality. According to Justice Dipak Misra, any person who has come to age and has the capability to think on his own has the right to choose his life partner. An individual has the right to union under the ambit of Article 21, where Union does not only mean marriage, but also companionship in every sense, be it physical, mental, sexual or emotional.

Same-Sex Marriage in India

It has been almost three years since the 2018 judgment was passed and even though the LGBT rights have evolved in India over the past few years, Indian LGBT people are still faced with the constant struggle of recognition of their rights. Although the country interpreted Article 15 of the Constitution and prohibited any form of discrimination against the homosexual, many other legal provisions have not been provided for which includes same-sex marriage. The same-sex married couple who live together in India are deprived of their rights as the Constitution does not even recognize them being married.

There is both, a strong support and opposition, on social, political and religious grounds, revolving around same-sex marriage. Some jurisdictions through regulations permit full-fledged marriage between same-sex couples while other jurisdictions lay down the punishments for homosexual relationships. In India, the marriages are not legally recognised nor are the couples offered limited rights.

Sexual orientation forms an important part of an individual’s identity and no one should be a target of violence, or discriminated against on the basis of their sexual preferences. Gay sex continues to be a taboo in India, especially in rural areas where a majority section is homophobic and considers it a crime. In 2011, the Haryana Court granted legal recognition to two women who got married to each other, after they received threats from their family and friends in their village.

On 12th June, 2020 the Uttarakhand High Court acknowledged that while the concept of same-sex is not legally recognised, couples who are cohabiting in a live-in relationship are granted protection by the law. On January 2020, a petition was filed in Kerala by a gay couple who got married in July 2018 and were living together since then. Due to the lack of recognition of their legal rights as compared to other couples, they felt discriminated against. They also mentioned that there was a lack of acceptance in society.

Conclusion

First of all, it is time that we stop considering homosexuality as an “offence: or a “mental illness”. There is absolutely no reason, other than the blind prejudice, to prevent two heterosexuals from going through a civil ceremony which will grant them the same rights and securities that heterosexual couples enjoy. Aren’t we living in an age and society which respects the individual’s right to choose their own life partner? Then why do two men or women who want to be together have to face a constant struggle? Marriage is a sign of love and commitment and if two people, be it of any gender, show that commitment, how does that destroy the ideals of marriage?