Decriminalization of Homosexuality in India

Decriminalization of Homosexuality in India
Introduction:-
On September 6, 2018, a historic judgment was made by the Supreme Court of India which
decriminalized Section 377 of Indian Penal Code. Supreme Court ruled that consensual adult
gay sex is not a crime. The verdict originated a sense of inclusiveness among those members.
The landmark decision was given by a bench consisting of chief justice Dipak Misra and
justices DY Chandrachud, AM Khanwilkar, Indu Malhotra, and Rohinton Fali Nariman in
Navtej Singh Johar v. Union of India.
History:-
Section 377 of the Indian Penal Code is introduced in 1861 during the British rule of India. It
was modeled on the Buggery Act of 1533 which defined ‘buggery’ as an unnatural sexual act
against the will of God and man. Thus, this criminalized anal penetration, bestiality and in a
broader sense homosexuality.
In 1828, the Act was repealed and replaced by the Offences against the Person Act 1828. This
Act broadened the definition of unnatural sexual acts, and allowed for easier prosecution of
rapists, but also homosexuals.
Legal Battle:-
The legal battle for decriminalizing homosexuality first began in 1994 when AIDS Bhedbhav
Virodhi Andolan (ABVA) filed a petition in the Delhi High Court challenging the section’s
constitutionality.
In 2001, Naaz Foundation (India) Trust, a non-governmental organization challenged Section

377 in the Delhi High Court by filing a lawsuit to allow homosexual relations between
consenting adults. They argued that Section 377 should only be applicable to non-consensual
penile non-vaginal sex and penile non-vaginal sex involving minors. However in 2003, the
High Court dismissed the case, stating that the Naz Foundation had no standing in the matter
(locus standi).
Delhi High Court verdict of 2009:-

The Naz Foundation appealed this dismissal by the High Court to the Supreme Court, which
concurred with them, and instructed the High Court to reconsider the case. This led to the
historic judgment in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar,
which decriminalized consensual sexual acts between adults. Furthermore, this judgment was
to be in force until the Parliament decided to amend Section 377.
With this, sexual activities in private between two consenting adults, irrespective of their
sexual orientation were no longer a criminal offence.
Further fight in Supreme Court and Parliament:-

On December 11th, 2013 a panel of two Supreme Court judges overturned the decision that
the High Court had made in 2009. The judgment stated that the power to amend the law was
with the Parliament and not the High Court, thus their (High Court’s) judgment was
constitutionally unstable. Thus, the Supreme Court recommended that the Parliament address
the matter because only they had the power to amend the existing laws.
Congress MP Shashi Tharoor had introduced a Private Member’s Bill in the Parliament in
2015, which was in tune with the 2009 Delhi HC judgment. The bill was voted down by the
Parliament that sought to decriminalize homosexuality.
This fight against Section 377 was set back on the track in 2014, when a two-judge bench
passed the famous NALSA (National Legal Services Authority) judgment by which the
members of the transgender community were given the right to be called the third gender.
Positively, the Supreme Court’s landmark 2017 judgment on the right to privacy as a
fundamental right propelled the fight against section 377 even further as it included sexual
orientation.
In 2018, a total of five people filed a petition to an apex court asking to re-look the judgment
passed in the case of Naaz Foundation which was heard by a three-member SC bench and
claimed that the section violated Article 14, 15, 19 and 21 of the Constitution.
Finally, on September 6, 2018, India bid adieu to the 150-year old rule, thereby
decriminalizing homosexual activities between consenting adults.
Status at International Level:-

There are 73 countries – mostly in the Middle East, Africa and Asia – where homosexual activity
between consenting adults is illegal. There are currently eight countries, in which homosexuality
is punishable by death. These are Iran, Sudan, Saudi Arabia and Yemen; parts of Somalia and
northern Nigeria, under sharia law.
Positively, only five countries in the world – Bolivia, Ecuador, Fiji, Malta and the UK – have
constitutions that explicitly guarantee equality for citizens on the basis of sexual orientation
as well as gender identity. Five countries – Mexico, New Zealand, Portugal, South Africa and
Sweden – have constitutions that provide protections based on sexual orientation.
Conclusion:-
Decriminalizing section 377 is a dawn of a new era where targeted people who have suffered
psychologically and are subjected to violence and discrimination, are free to enjoy their
sexual orientation in their personal space. The recent judgment leads everyone to believe that
indeed the Indian Judiciary is a bastion of fundamental rights in the country.

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Decriminalization of Homosexuality in India

In 2001, Naaz Foundation (India) Trust, a non-governmental organization challenged Section

Delhi High Court verdict of 2009:-

Further fight in Supreme Court and Parliament:-

Status at International Level:-

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