09, Jul 2018 | Deborah Grey

The Indian Supreme Court is all set to start hearing a series of petitions that call for the reading down of Section 377 of the Indian Penal Code. In these petitions the plea is to decriminalise consensual sex between adults in private. Section 377 that criminalises ‘carnal intercourse against the order of nature’, also affects heterosexual people. Here is a brief account of the LGBTQIA community’s quest for equality and justice so far.

Section 377 criminalises ‘unnatural sex’. It says,

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.

This clearly means that all sexual activity that can be categorised as ‘unnatural’ comes under the purview of this section of the law. This provision of the law, therefore not only affects the LGBTQIA community, but also cis gender heterosexual people who engage in any sexual activity that involves an artificial orifice, sexual aids or toys, penetration of non-vaginal orifices in the human body. Interestingly, therefore, it effectively means that homosexuality or feeling attracted to a person of your own sex is not illegal, but engaging in ‘unnatural’ sex is. Nobody can detain or imprison you just because you are homosexual. However, if caught having sex ‘against the order of nature’, the person can be booked under Sec 377. This is precisely why the LGBTQIA community and human rights activists have been demanding that this section be read down.

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Section 377 in the Courts

In May 2009, The Delhi High Court had read down section 377 and decriminalised consensual sex between adults irrespective of their gender or sexual orientation. A summary of that judgment may be read here:

Case Summary Naz Foundation v. Government of NCT of Delhi and Others

In December 2013 however, the Supreme Court set aside this landmark judgment effectively recriminalising so called “unnatural sex”. It was left to the Parliament to pass appropriate legislation to tackle the subject. The judgment may be read here:

Suresh Kumar Koushal & Anr vs Naz Foundation & Ors

After this Bharatnatyam dancer Navtej Singh Johar and others moved Supreme Court in June 2016. Their petition highlights how the constant fear of their sexuality becoming known has affected their personal and professional lives. This petition may be read here.

In an unexpected shot in the arm for India’s vibrant LGBTQIA community, while delivering the verdict in the Right to Privacy Case in August 2017, Justice DY Chandrachud who authored the judgment of the four judge bench that also comprised then Chief Justice J.S Khehar, Justice RK Agrawal and and Justice S Abdul Nazeer, made remarks that once again left a backdoor open to legally challenge section 377. You can read the entire judgment here:

Right to Privacy Judgment

Here is an excerpt from the judgment that talks about privacy and how it applies to LGBTQIA:

The decision in Koushal presents a de minimis rationale when it asserts that there have been only two hundred prosecutions for violating Section 377. The de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment. The reason why such acts of hostile discrimination are constitutionally impermissible is because of the chilling effect which they have on the exercise of the fundamental right in the first place. For instance, pre-publication restraints such as censorship are vulnerable because they discourage people from exercising their right to free speech because of the fear of a restraint coming into operation. The chilling effect on the exercise of the right poses a grave danger to the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity. The chilling effect is due to the danger of a human being subjected to social opprobrium or disapproval, as reflected in the punishment of crime. Hence the Koushal rationale that prosecution of a few is not an index of violation is flawed and cannot be accepted. Consequently, we disagree with the manner in which Koushal has dealt with the privacy – dignity based claims of LGBT persons on this aspect.

Fresh Petitions in the Supreme Court

After the landmark ruling in the Privacy case a slew of petitions were filed once again in the Supreme Court. These include:

There is a petition by Ashok Row Kavi who is one of India’s oldest and most prominent LGBTQIA rights activists. He is the founding chairman of The Humsafar Trust, one of India’s best known non-profit organizations working to not only educate and support the LGBTQIA community, but also spread awareness about HIV, AIDS and safe sexual practices. Kavi says, “I have been fortunate in being able to come out of the closet, but have personally witnessed the humiliation that LGBTQI people face and the detrimental emotional impact criminalization and stigma has on them. More than anything else I have witnessed the negative, impact of the law under Section 377, IPC on the lives of LGBTQI persons, particularly gay men and transgender persons, both physically and emotionally, as a result of which they live double lives. The criminalization of their core being has devastating impact on their psyche. The Humsafar Trust was primarily set up to empower LGBTQI communities to overcome the stigmatization resulting from the law and has been working on these issues for the past 24 years. Therefore it is my strong belief that IPC Sec 377 must exclude consensual, sexual conduct between adults.” The entire petition may be read here.

Hotelier Keshav Suri has also moved Supreme Court against Section 377. The 33 year old Executive Director of the Lalit Suri Hospitality Group says, “I think the timing is perfect. We have support from the media, our straight allies and most importantly the youth.” His entire petition may be read here.

Equal Rights activist Harish Iyer has also filed an Impleadment Application urging the court to consider how homosexuality is not against Indian culture. “I ask for reading down of section 377 so that consensual sex between adults in private should not be the business of the state to interfere. I am not seeking the abolishment of section 377 as there is no law that protects non-females from sexual violence like rape,” he says. His IA may be read here.

Feature Image courtesy QGraphy

Related:

Understanding LGBTQIA (Community Resource)

Rainbow through the years

Love is the Order of Nature

Homophobia is Anti-National: Keshav Suri