Yesterday, the struggle against Section 377 of the Indian Penal Code, which criminalises sexual expression by LGBT as “unnatural offences”, witnessed a small, but important, victory. The Supreme Court gave its much awaited order on the curative petition against its older judgment on Section 377 of the Indian Penal Code. It referred the petition to a five-judge constitutional bench which will further examine issues surrounding the controversial section. This is a small victory for the LGBT community that has been fighting against this draconian, 150-year old law which criminalises acts it considers “against the order of nature”. This law is colonial legacy which has long since been discarded by the UK. In India, it has been used to subjugate and harass members of the LGBT community for over a century. It criminalises sexual expression by same sex partners and has been at the centre of the struggle for LGBT rights in India.
The legal battle against Section 377 started when the Naz Foundation challenged the Section before the Delhi High Court. In its historic judgment in 2009, the Delhi High Court decriminalised homosexual intercourse between consenting adults. It voiced legal commitment to upholding the dignity of all individuals and to the principles of non-discrimination and inclusiveness. The Naz decision of Delhi High Court was celebrated by the LGBT community and their supporters throughout the country as it gave them relief from the criminal law that had been used to stifle their freedom to live and love.
There was a wave of optimism and celebrations as the LGBT community finally broke free from the legal chains that required them to keep their sexuality and love hidden.
Photo source: Flickr/Vinayak Das
Unfortunately, this victory was short lived. In 2013, the Supreme Court reversed the Delhi High Court verdict and upheld the validity of Section 377. In 2014, it dismissed the review petitions filed against its 2013 decision and reinstated Section 377. Sexual expression by same sex partners was again criminalised and many stories emerged of harassment of LGBT individuals. The Supreme Court decisions were a major setback and disappointment for all supporting the basic human rights of LGBT. The Supreme Court had summarily dismissed the stories of struggle and harassment of LGBT people, referring to them as a miniscule minority in its judgment. The decision reinstated the colonial era’s Victorian morality by re-criminalising sexual expression by members of the LGBT community.
It left open the possibility of Parliamentary action to decriminalise homosexuality. Although, the ruling party then had voiced its support in favour of striking down Section 377, no action was taken. After the change in government, the latest efforts for introducing a private bill to decriminalise Section 377 have also failed.
With little support from political avenues, it is left to the courts to protect the rights and dignity of LGBT persons. Minority rights have often been vindicated by the courts by recognising the validity of their pleas when the legislature had failed to act. Therefore, a lot of hope and apprehension is riding on the Supreme Court’s verdict.