Love is Love: Section 377, the Long Battle and the Final Victory

The Supreme Court decriminalised the 158-year-old colonial law against homosexuality on September 6, 2018. Section 377 was finally read down by the Supreme Court after a long battle. Here is all you need to know about the controversial section, what it meant, when the battle against it started and what the final verdict said.

After a long battle, India finally witnessed a landmark verdict by Supreme Court on Thursday, September 6, 2018. The controversial Section 377  that criminalised consensual gay sex in India was finally read down.

Section 377 of Indian Penal Code, a colonial law against homosexuality, dating back to 1861, said: “Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

As per the National Crime Records Bureau, 1,491 people were arrested under Section 377, including 207 minors and 16 women in 2015.

The early battle

The fight against this section was initiated in 1994 by AIDS Bhedbhav Virodhi Andolan (ABVA). They filed the first petition in the Delhi High Court against Section 377 to challenge prison authorities’ ban on condom distribution. ABVA failed to follow through with its petition and it was eventually dismissed in 2001.

The fight was further taken forward by Naz Foundation, an NGO that works for LGBTQ rights in 2001. They filed a PIL in Delhi High Court and it was the first major case against Section 377. The petition stated that the section violates the fundamental rights of the LGBTQ community.

In 2009, the High Court decriminalised Section 377, ruling that consenting intercourse between two adults was not illegal.

However, the fight was not over yer. In 2013, a two-judge Supreme Court Bench upheld the appeal and recriminalised gay sex.

The final victory

After over two decades of a continuous fight, the LGBTQ community received the much-deserved justice. On September 6, the SC ruled that consensual adult gay sex is not a crime, sexual orientation is natural and people have no control over it.

A five-judge bench led by CJI Dipak Mishra unanimously declared the verdict and made homosexuality legal. Other aspects of Section 377 dealing with unnatural sex with animals and children will remain in force.

What the judges said

  • Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression.LGBT community possesses same human and fundamental rights as other citizens.
  •  No one can escape from their individualism. Society is now better for individualism. In the present case, our deliberations will be on various spectrums.
  • History owes an apology to members of LGBT community and their families for ostracisation and persecution they faced because of society’s ignorance that homosexuality is a natural trait; its penal suppression infringes a host of fundamental rights.
  • The state has no business to get into controlling the private lives of LGBT community members or for that matter, any citizen.
  • Decriminalising gay sex is only the first step to bury the Colonial Ghost. Time has come to move forward and give the LGBT community the other constitutional rights.
  • Homosexuality is not a mental disorder, which has been also recognised by Parliament. Centre must give wide periodic publicity to the SC judgment to eliminate the stigma attached to LGBT community.

Photos: Facebook

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Shreya Pareek

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