In a historic judgment, the Supreme Court of India on September 6, 2018 decriminalised homosexuality in India. A five-judge constitution bench led by Chief Justice Dipak Misra and comprising Justices AM Khanwilkar, DY Chandrachud, RF Nariman and Indu Malhotra gave four separate but concurring judgments on the matter. The bench had also partially struck down the colonial era provisions of Section 377 of the Indian Penal Code (IPC) and restored the landmark Delhi High Court judgement that had decriminalised homosexuality way back in 2009. The bench diluted the controversial section to exclude all kinds of adult consensual sexual behaviour. With the landmark judgement, we need to understand the entire scenario of the sensitive matter.
LGBTQ stands for lesbian, gay, bisexual, and transgender. It was used to replace the term gay in reference to the LGBT community beginning in the mid to late 1980s. The activists believed that the term gay community did not perfectly represent all those to whom it referred. Later the initials were adopted into the public as a complete umbrella term for use when naming topics pertaining to sexuality and gender identity. The letter Q for those who identify as queer or are questioning their sexual identity.
The Chapter XVI, Section 377 of the Indian Penal Code (IPC) 1860 was introduced during the British rule of India. The section criminalises sexual activities "against the order of nature." The act defines says 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. The ambit of Section 377 extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.
LGBTQ activists claimed that Section 377 discriminated them solely on their sexual orientation. They term that it has violated the right of the LGBTQ community to “equal citizenship and equal protection of laws.” Besides, the choice of a partner was part of the fundamental right to privacy.
In 1991, several LGBTQ members joined hands to initiate a movement to repeal Section 377. The movement was spearheaded by AIDS Bhedbhav Virodhi Andolan which published a book titled, ‘Less than Gay: A Citizen's Report’, listed out the problems with section 377 and demanded for its repeal. As the case prolonged over several years, the next level of revive was done made by NGO which filed PIL in in the Delhi High Court in 2001. The case sought legalisation of homosexual intercourse between consenting adults. Once again the case began to drag, but Delhi High Court gave a historic judgement on July 2, 2009, legalizing consensual homosexual activities between adults. But once again there was roadblock, when Supreme Court struck down the judgement as a result Section 377 was reinstated with full force. The Supreme Court was further very specific that this was not the end of the debate and it asked parliament to take a decision on whether Section 377 should be repealed or not. In response, the Union Government filed a review petition on 21 December 2013 stating that the judgement was violating rights under article 14, 15 and 21 of the Constitution.
There are several opposition to repeal the section 377. The Apostolic Churches Alliance was opposing case since they argued that homosexuality was an abomination in the Bible. It is contended that decriminalising homosexuality would make the Prevention of Immoral Trafficking Act, 1956 redundant. It is also maintained that if the section is allowed then sexual transmitted diseases like AIDS would further spread and harm the people. Moreover, they contended that it would lead a big health hazard and also morally degrade the society.
The Supreme Court unanimously ruled that Gay sex among consenting adults is not a criminal offence. The bench maintained that it is a part of a 158-year-old colonial law that criminalised it, violated the constitutional right to equality and dignity. It unanimously held that the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community possess the same constitutional rights as other citizens of the country. It termed sexual orientation as a "biological phenomenon" and "natural" and held that any discrimination on this ground was violative of the fundamental rights. It ruled that it is declared that insofar as Section 377 criminalises consensual sexual acts of adults in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion. The bench also said that homosexuality was not a mental disorder, but a completely natural condition.