Decriminalization of Section 377: Marking Two Years of Independence
By: The Opinion
Tags: Human Rights, Liberty, LGBT, 377, Gay

Decriminalization of Section 377: Marking Two Years of Independence

Photo by Mercedes Mehling on Unsplash

Introduction

LGBTQ+ community, the most winnow strata of Indian society and the section whose people appear to be rattled due to public brickbats were finally given a golden opportunity. That is, an opportunity to live with equality and personal liberty, which they were deprived of for 157 years. The dawn of September 06, 2018 was much awaited by the LGBTQ+ community with the community looking towards the Supreme Court with the eyes of hope and anticipation. It was the day when their future was to be manifested. Whether they will be treated with respect and given a chance to live with dignity or will they keep lingering in an appalling state were the questions that kept coming incessantly in the mind of every Indian. Finally, the decision came, that marked the victory of law, love, and humanity and spurred LGBTQ+ people to approach the courts for rights ranging from employment and identity to anti-discrimination and marriage. The Constitutional Bench comprising of Former Chief Justice of India Deepak Mishra, as well as Justices AM Khanwilkar, DY Chandrachud, Rohinton Nariman and Indu Malhotra, while delivering a unanimous judgment, decriminalized a 157-year-old British-era Law in Navtej Singh Johar and Others v. Union of India.

Antiquity Preceding the Decriminalization of Section 377

The antiquity of this battle can be traced to the year 2001 when the issue of Section 377 was first raised by the NGO Naz Foundation in Delhi High Court. The Delhi High Court in Naz Foundation v. Govt. of NCT of Delhi in 2009 pronounced a judgment decriminalizing consensual sex between two adults of the same gender. Dealing with unnatural offenses, Section 377 of the Indian Penal Code, 1860 (IPC) provided for the punishment of imprisonment for life or with an imprisonment of either description for a term which may extend to ten years or with a fine for having voluntary carnal intercourse against the order of nature with any man, woman or animal. The decision of the Delhi High Court was soon overturned in 2013 by the Supreme Court in Suresh Kumar Koushal & Anr. v. Naz Foundation & Anr. This verdict of the Supreme Court left everyone aghast, wherein holding Section 377 as constitutional, the Court held that if homosexual acts need to be decriminalized, only Parliament can do this and not the Courts.

Though the judgment of NALSA v. Union of India in 2014 had lit a spark of hope in the hearts of the LGBTQ+ community, wherein a strata of LGBTQ+ community, the transgenders, were given the status of third gender, the fight of equality and a right to life and dignity was not over. Even before the issue regarding the decriminalization of Section 377 of the IPC came to a conclusion, the biggest challenge before the Supreme Court was the Koushal Judgement. So, the first and foremost step that the Constitutional Bench headed by the then Chief Justice of India Deepak Mishra took in the Navtej Singh Johar case was to assess whether Section 377 of the Indian Penal Code, 1860 violated the fundamental rights given under the Constitution or not.

Referring to the unanimous verdict of the nine-judge bench in K.S. Puttaswamy v. Union of India, the Supreme Court held that the Koushal Judgement was no longer a good law and that the right to privacy included one’s sexual orientation as well. Moreover, the Koushal judgement which held that Section 377 did not violate the right to life and liberty on the basis that only a “minuscule minority” was affected by it had been denounced by Justice Sanjay Kishan and Justice Chandrachud’s plurality judgment (on behalf of four judges) in the right to privacy case. Further, the Koushal Judgement was also rejected as it had ignored the potential for the misuse of Section 377 against the LGBTQ+ community in depriving them of their rights.

Once the Koushal Judgement was out of the way, the judges further moved on to the issue of whether Section 377 violated fundamental rights. It was held that Section 377 was in violation of Articles 14,15,19(1)(a) and 21 of the Constitution of India. Hence, the Hon’ble Supreme Court gave a momentous judgement striking down a part of Section 377 of the IPC as unconstitutional as it violated the right to privacy.

Change in Scenario After Decriminalization of Section 377

Responding to 34 petitions in Navtej Singh Johar and Others v. Union of India, the verdict of the Apex Court on September 06, 2018 had lifted the veil of violence, ignominy and bias by spurring the people of the LGBTQ+ community in approaching courts for their rights.

Not only was consentual homosexual sex decriminalized, but several other verdicts have also been given in favor of the community after the Navtej Singh Johar’s judgment. One of them is Arunkumar v. the Inspector General of Registration, in which the Madras High Court in 2019 relying on Navtej Singh Johar’s verdict upheld the marriage of the transwoman by deciding that the word “bride” in the Hindu Marriage Act encompassed transgender women. The Orissa High Court too, in August 2020, ruled in favour of a 24-year old transman and his same-sex companion to live with each other. The fact that the oft-quoted maxim- love knows no bounds has expanded its bounds to include same-sex relationships and has been acknowledged by the Indian Courts at large.

Not only did the decisions of the Courts start favoring the LGBTQ+ community, but also it has given courage to several people to come out of their veils and accept being the way they are and face the world with valor and bravery. Moreover, even though falling short of the expectations sought to be fulfilled, the heavily debated Transgender Persons (Protection of Rights) Act,2019 received the assent of the President, which is a great step towards recognition and betterment of the community.

Despite this, the dichotomy of promise and perils is still confronted by the LGBTQ+ community. The transgender persons are still hobbled by the stagnant mindset of the people and the violence against them has been rampant across India. In the last two decades, the reports of violence against the LGBT community, especially the transgender persons, have poured in from across India. The instances of hate crimes against them too seem to thrive across India. In toto, their life has changed much on papers, but very slightly in reality.

Conclusion

The fact that law can only change the law, but not the behavior of the people can be seen in the case of this community as well. The verdict of 2018 has marked the end of an era of oppression, where this law will no longer be available to facilitate, foster or, perpetuate an atmosphere conducive to human rights violation of various kinds and will put an end to the discrimination that many millions have faced because of their gender identity or sexual orientation. However, it is also true that it will take many more years or decades to eradicate the stigma surrounding this community and to normalise their way of life.

Though they have been given the right to equality and right to live with dignity on papers, the practice of these rights on the ground level is still far away. Dignity as a jurisprudential concept has now been well defined by the Apex Court, but it will take several more years or decades to bring this concept in practice. In essence, for two decades, the battle for LGBTQ+ rights in India coalesced around Section 377, but after the decriminalization of Section 377, the need is for the recognition of overarching equality and non-discrimination law for all in order to give the LGBTQ+ community a true right to live their life with dignity. This is only the dawn of the new era. True and complete freedom is yet to be achieved.