Section 377- A draconian law based on Victorian morality
The Section 377 of the Indian Penal Code was inserted in Chapter XVI and formulated into a law back in 1861 under the British rule. The law criminalised any sexual activity against the “order of the nature” including homosexuality that was prohibited in the Victorian order of nature. India had been a culturally progressive land where the depictions in temples of Khajuraho and Shikhandi’s character in the Mahabharata highlighted the existence of different sexual orientations. At a time when majority of the world governments have recognised the rights of Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) community, India is debating the morality of these minorities.
Social Stigma prevalent in India
Just as every other citizen, people from LGBTQ community deserve equal right to live life peacefully. But, that is not the case for people from this community, as they are often targeted by several religious fundamentalist groups calling them corrupt and distorting the “Indian culture”. Majority of the public feels that homosexuality is a mental illness influenced by the Western culture, more often than not they attack and spew venom on the people from LGBTQ community in India. The latter are looked down upon in the Indian society and face hardships, violence and discriminations in every nook and corner of the society. There is social stigma prevalent in India against the LGBTQ community that is not only making it more difficult for this minority community to fight for their rights but it is also taking away their right to live without any hinderances. For years, the LGBTQ rights in India have remained a bone of contention among the general masses with only the LGBT community and some sections of the society coming in open for the rights of the marginalised community.
LGBTQ rights in India and their fight for equality
In the last decade or so, people from the LGBTQ community in India have come out in the open to fight for equal treatment and right to live without facing discrimination or assaults, especially in the metropolitan areas. The year 2009 was a landmark year for the LGBTQ community when Delhi High Court gave its verdict in the Naz Foundation v. Govt. of NCT of Delhi case. The case was headed by two-judge bench held that it is a violation of fundamental rights of the LGBTQ community, if consensual homosexual sex between adults is treated as a crime.
A major setback for the LGBTQ community in India came in December 2013, when the Apex court in India set aside the ruling of Delhi High Court to decriminalise consensual homosexuality. The Supreme Court suggested that the Parliament should deliberate and decide on the matter pertaining to the Section 377.
Naz Foundation have fought the battle for equal rights of the LGBTQ community in India for several years. After the decision of the Supreme Court in 2013, Naz Foundation along with Central government filed a review petition against the Apex court’s December, 2013 ruling, the petition was quashed by the Supreme Court.
In 2015, Indian Parliamentarian Shashi Tharoor introduced a bill on the floor of Lok Sabha to repeal Section 377; however, the bill failed to pass the test of the floor. In the following year, Supreme Court of India decided to evaluate the criminalisation of homosexuality and Section 377. In 2017, the Apex Court unanimously took a decision in favour of the LGBTQ community stating that Right to Privacy is an intrinsic and fundamental right of an individual under the Constitution of India.
At the start of 2018, the Supreme Court decided to review Section 377’s validity, and May 1 decided to hear the petitions filed against the Section 377 of IPC and asked the government to form its position on the matter based on valid arguments.
Supreme Courts review of Section 377 – glimmer of hope for LGBTQ community
On July 10, the Supreme Court set the ball rolling on the issue of Section 377 and decriminalising consensual homosexuality. The five-judge bench is headed by Chief Justice of India along with senior Supreme Court judges. The court has asked the Central government to come up with its position on decriminalising the Section 377. The senior advocate Mukul Rohatgi, Justice Chandrachud, and renowned choreographer Navtej Singh Johar are of the opinion that public morality cannot upheld the constitutional morality and the Section 377 was created based on Victorian principles of morality. They feel that with the changing time it is necessary to do away with such a draconian law that curtails the Fundamental Rights of a minority section of the Indian society.
The Indian Psychiatric Society released a report stating that homosexuality is not a mental disorder. It is a natural process that pertains to individuals sexual orientation, every individual should have the right to choose their partner without being restricted through laws like Section 377 as it curtails several Fundamental Rights of the individual. The people from LGBTQ community in India remain hopeful that the Apex court will rule the decision in their favour and the years of attacks, torture, and discrimination will finally come to an end, every individual regardless of their sexual orientation can live a decent and respectable life.