Sexual activity that modern society thinks is ‘against the order of nature’ has always been a reality. A few laws have lead the way to cement this idea. Here in India, we have Section 377 of the Indian Penal Code.
It states: “Whoever voluntarily has intercourse against the law of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment for a term which may extend to ten years, and shall also be liable to fine.”
This archaic British law dates back to 1861 and existed to criminalise homosexuality.
Decades down the lane, we saw a huge change with the landmark 2009 Delhi High Court judgement that described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. As a response, religious groups moved the Supreme Court.
The Supreme Court in 2013 overruled the Delhi High Court’s order, stating that it was the Parliament’s job was to scrap laws, not the judiciary’s. This judgment by the apex court was heavily criticised by the LGBTQ community and its allies in India and was seen as a setback for human rights.
Unwrinkled, on August 24, 2017, the Supreme Court upheld the Right to Privacy as a Fundamental Right under the Constitution in the landmark Puttuswamy judgement. The Court also called for equality and condemned discrimination, stating that the protection of sexual orientation lies at the core of our Fundamental Rights and that the rights of the LGBTQ population are real and founded on the constitutional doctrine. This judgement was believed to imply the unconstitutionality of Section 377.
In January 2018, the Supreme Court agreed to hear a petition to revisit the 2013 Naz Foundation judgment. And then the last judgement. On 6 September 2018, the Supreme Court of India decided to announce that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, “irrational, indefensible and manifestly arbitrary“, but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts, and bestiality (savagely cruel or depraved behaviour).
The responses came swiftly from the public, as well as those in power. The views of some political parties were as follows:
The Congress’ reaction was positive.
We join the people of India & the LGBTQIA+ community in their victory over prejudice. We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society. #Section377 pic.twitter.com/Fh65vOn7h9
— Congress (@INCIndia) September 6, 2018
On the other hand, BJP sources told NDTV that the party was never rigid about the decriminalisation of section 377 and it was the Congress which had opposed it in the High Court earlier.
Regardless, the fight for equality remains. And we need to fight for what is ours.