The Supreme Court’s landmark judgment in Navtej Singh Johar v. Union of India[1] decriminalizing consensual homosexual acts under Section 377 of the Indian Penal Code (IPC) in September 2018 marked a historic turning point in the struggle for LGBTQ rights in India. Section 377, imposed during British colonial rule in 1861, criminalized “carnal intercourse against the order of nature” and was used to persecute LGBTQ individuals for over 150 years.[2] The lengthy legal battle to strike down this archaic and discriminatory law involved tremendous courage, perseverance and mobilization by LGBTQ activists and allies. However, while the decriminalization of homosexuality was a hard-won victory, it is only the first step on the long road towards full equality and inclusion of queer and transgender persons in society. Much work remains to be done.
Section 377 and Early Legal Challenges
Section 377 of the IPC, based on Victorian-era morality, criminalized non-procreative sexual acts as being “against the order of nature”, including same-sex relations. The law did not explicitly mention homosexuality, but was used by police and courts to harass, intimidate and prosecute LGBTQ persons.[3] Historically, the law was seldom applied in cases of consensual sex, but served more as a tool for blackmail, abuse and social control.
The campaign to repeal Section 377 began in the early 1990s, led by groups like the AIDS Bhedbhav Virodhi Andolan which argued that the law posed a hurdle in HIV/AIDS prevention efforts.[4] Their petition filed in Delhi High Court in 1994 was dismissed on technical grounds. In 2001, the Naz Foundation (India) Trust filed a Public Interest Litigation in the Delhi High Court challenging the constitutionality of Section 377.[5] This case too was dismissed in 2004 as the Court held that the petitioners lacked standing. However, in 2006, the Supreme Court overturned the dismissal and sent the case back to the Delhi High Court for a decision on merits.[6]
This opened the doors for a renewed legal challenge to Section 377. Numerous LGBTQ rights groups and activists intervened in support of the Naz Foundation’s petition, including Voices Against 377, a coalition of 12 organizations.[7] After extensive hearings, the Delhi High Court finally delivered a historic judgment in July 2009 decriminalizing consensual homosexual acts between adults, holding that Section 377 violated constitutional rights to equality, non-discrimination, life and personal liberty, privacy and dignity.[8] The Court read down the section to exclude adult consensual sex from its purview.
However, this progressive judgment was overturned by the Supreme Court in December 2013 in Suresh Kumar Koushal v. Naz Foundation.[9] The Supreme Court held that amending Section 377 was a matter for Parliament, not the judiciary. This decision was met with outrage and protests from LGBTQ groups across India.[10] It spurred fresh litigation challenging the constitutionality of the law on the grounds of privacy, dignity and sexual orientation being integral to one’s personality and identity.
The Road to Decriminalization
The Koushal judgment proved to be only a temporary setback. It galvanized LGBTQ activists and civil society to campaign relentlessly for the repeal of Section 377.[11] Public support for queer rights also steadily grew, especially among young people. LGBTQ persons and communities were becoming more visible in mainstream culture and media. In 2017, the privacy judgment in Justice K.S. Puttaswamy v. Union of India[12] upholding privacy as a fundamental right laid the constitutional basis for a renewed challenge to Section 377 on grounds of privacy and personal liberty.
In January 2018, a three-judge bench of the Supreme Court agreed to reconsider the Koushal judgment and referred the matter to a larger Constitutional bench.[13] Petitions were filed by an array of human rights groups, mental health professionals and prominent LGBTQ persons arguing that Section 377 violated fundamental rights. After marathon hearings where rival groups made impassioned arguments for and against the law, the Constitution bench unanimously struck down Section 377 as unconstitutional in September 2018.[14]
The Court held that Section 377 insofar as it criminalized consensual adult homosexual relations was arbitrary, indefensible and manifestly unconstitutional. It violated the rights to equality, privacy, dignity, autonomy, intimacy and sexual expression. The judgment marked a new era of hope and affirmation for LGBTQ persons in India who could finally come out of the shadows and live without fear or guilt. The Court acknowledged that homosexuality was a natural variant of human sexuality and that “criminalizing carnal intercourse under Section 377 Indian Penal Code is irrational, indefensible and manifestly arbitrary”.[15]
Ongoing Struggle for Full Equality
While the reading down of Section 377 was a huge victory for LGBTQ rights, it does not automatically ensure full equality before law and equal citizenship for queer and transgender persons. There is a long way to go in the battle against societal prejudice. LGBTQ persons continue to face stigma, discrimination and violence in their daily lives, including in accessing housing, healthcare, jobs and education.[16] There are no legal protections against discrimination based on sexual orientation or gender identity in employment, services or housing.
The Transgender Persons (Protection of Rights) Bill passed in 2019 was criticized by LGBTQ activists as inadequate and flawed.[17] The Bill fails to provide full legal recognition of gender identity and has procedural barriers for changing official documents. Same-sex marriage or civil unions are still not legally recognized. LGBTQ persons have no legal recourse against hate crimes. Police often fail to take action against harassment and violence targeting queer people. The law on sexual assault is still gender-specific and does not cover abuse against transgender persons.
Realizing the constitutional promise of equality and non-discrimination for LGBTQ persons requires further legal reform. Some steps in this direction would be enacting a comprehensive anti-discrimination law, amending the definition of sexual assault to be gender-neutral, allowing self-declaration of gender identity, providing marriage equality and parenting rights, and prohibiting conversion practices.[18] However, legal reform alone is insufficient to change social mindsets or end discrimination. The LGBTQ rights movement needs to expand beyond its middle-class urban roots and encompass issues of class, caste, religion and disability.
Conclusion
The Supreme Court judgment decriminalizing Section 377 marked the culmination of a long struggle by LGBTQ persons and activists. It represents a major milestone in the legal empowerment of queer and transgender groups. However, it is only the beginning of a still unfinished battle for social acceptance, equal rights and justice. The legal change is valuable in creating a more enabling environment free of harassment. But the work of changing social prejudices and ensuring non-discrimination is likely to be harder and will require sustained public education and advocacy. The LGBTQ movement needs to continue growing and building alliances to exert pressure on governments to enact progressive legal reforms. The principle of equal citizenship regardless of sexual orientation or gender identity needs to be fulfilled not just in law but also in practice. The decriminalization of Section 377 has opened the doors to this possibility by affirming the constitutional morality of inclusion, dignity and acceptance for all.
References:
[1] Navtej Singh Johar v Union of India, (2018) 10 SCC 1.
[2] Indian Penal Code, 1860, Section 377.
[3] Alternative Law Forum, Section 377 of the Indian Penal Code: Explained, https://altlawforum.org/publications/section-377-of-the-indian-penal-code-explained/
[4] People’s Union for Civil Liberties v. Union of India, (2001) 5 SCC 294.
[5] Naz Foundation v. Government of NCT of Delhi, 160 Delhi Law Times 277 (2009).
[6] Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.
[7] Voices Against 377, About Us, http://www.voicesagainst377.org/about-us/
[8] Naz Foundation v. Govt. of NCT of Delhi, WP(C) No.7455/2001, Delhi High Court.
[9] Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No.10972 of 2013.
[10] The Wire, “LGBTQ Activists Protest Against SC Verdict Recriminalising Homosexuality”, 11 December 2018.
[11] Orinam, Timeline of Section 377 Litigation, http://orinam.net/377/timeline-of-section-377-litigation/
[12] Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
[13] Navtej Singh Johar v. Union of India, WP (Crl) 76 of 2016.
[14] Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
[15] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, para 246.
[16] Human Rights Watch, “India: Transgender Bill Raises Rights Concerns”, August 2019, https://www.hrw.org/news/2019/08/08/india-transgender-bill-raises-rights-concerns
[17] Amnesty International, “India: New Transgender Bill Will Harm Rights”, August 2019, https://www.amnesty.org/en/latest/news/2019/08/india-new-transgender-bill-will-harm-rights/
[18] The Wire, “LGBTQ Indians Face Many Barriers to Accessing Healthcare”, June 2018, https://thewire.in/health/lgbtq-indians-face-many-barriers-to-accessing-healthcare