“History Owes an Apology to the LGBTQ Community”: SC Decriminalises Homosexuality
On September 6, the Supreme Court of India pronounced its verdict on petitions challenging Section 377 of the Indian Penal Code (IPC). In a unanimous decision, the five-judge bench read down the British-era archaic law, thus excluding consensual homosexual sex. The section is partially struck down; the law still stands with respect to bestiality and unnatural sexual offences committed against minors.
Reading out the landmark judgement, Chief Justice of India Dipak Misra declared that Section 377 violates Article 14 – equality before law. He commented, “Section 377 is arbitrary. LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights.” Justice Indu Malhotra added that history owes an apology to members of LGBT community and their family members for “the persecution they faced because of society’s ignorance,” while Justice DY Chandrachud observed, “Human sexuality cannot be confined to a binary.”
The first petition against Section 377 was filed by AIDS Bhedbhav Vidrohi Andolan (ABVA) in the Delhi High Court in 1994; the second was raised by Naz Foundation, a Non-governmental Organisation, in the Delhi HC in 2001 – both were struck down. In July 2009, the section was read down by the Delhi High Court with respect to consensual sex between homosexuals. In 2013, the Supreme Court (SC) overturned the judgment, declaring it to be a matter of the Parliament and not the judiciary. On 24 August 2017, the SC declared the Right to Privacy as a fundamental right, stating that “the protection of sexual orientation lies at the core of the fundamental rights”. The current judgement followed hearings that began on July 10, 2018 by a five-member constitutional bench on petitions filed by Bharatnatyam dancer Navtej Singh Johar, journalist Sunil Mehra, restaurateur Ritu Dalmia, Neemrana hotel chain co-founder Aman Nath and businesswoman Ayesha Kapoor.
Dating back to 1861 and modelled on the British ‘Buggery Act’ (1533), Section 377 of the IPC refers to unnatural sexual activities against “the order of nature”. It states, “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Featured Image Courtesy: Tamanna Wadehra
Edited by: Mehul Malpani