On The One Year Anniversary Since Section 377 Was Scrapped, We Look At The Journey To Decriminalise Homosexuality

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It’s the one-year anniversary since Section 377 was scrapped, decriminalising homosexuality in India. We’ve seen celebrations since, with queer people taking to the streets of India and globally. In London, we had a beautiful 377 scrapped celebration held by Gaysians. In Mumbai, there were marches with rainbow flags and hope. Chennai handed out free chocolates on the streets.

We saw people celebrate their sexuality in wholehearted hope for their future, and it was still for a future because decriminalising homosexuality isn’t the end goal. It’s the start.

Let’s look at what Section 377 was actually about.

It was in 1861, when the British Raj had colonised India that they brought in this law. It was modelled on the Buggery Act of 1533, which sought to make sexual activities “against the order of nature” illegal. It said:

377. Unnatural offences: 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.

It criminalised homosexual acts, non-consensual acts, bestiality and sex with minors. What that meant is that anyone who was caught acting on their orientation through sexual activity would be imprisoned.

 There were a few court proceedings before 2018.

In 1991, AIDS Bhedbhav Virodhi Andolan (the first AIDS/HIV activist group in India asked for its repeal in their publication Less than Gay: A Citizen's Report and was revived in 2001 by the NAZ Foundation. This non-governmental organisation, who also worked in the field of HIV/AIDS intervention and prevention, filed a petition declaring that Section 377 – in penalising sexual private acts between consenting adults – violates the India Constitution.

The parts of the Indian Constitution they pointed to include Articles 14 (equality before the law), 15 (non-discrimination), 19 (freedom of speech and movement) and 21 (right to life and personal liberty). 

What the NAZ Foundation revealed was that the homophobic elements of this Section, which was still in law, violated numerous human rights and therefore had to be scrapped.

They were successful and in the 2009 case Naz Foundation v. Govt. of NCT of Delhi, the Delhi Court’s two member bench agreed that it violated human rights and decriminalised homosexuality in a landmark case.

A few years later, in 2013, the Supreme Court's two member bench (Justices G. S. Singhvi and S. J. Mukhopadhaya) overturned the decision of the Delhi High Court, in the case Suresh Kumar Koushal v. Naz Foundation, saying the 2009 order of the High Court is "constitutionally unsustainable as only Parliament can change a law, not courts". They reinstated Section 377.

 Then it changed again and this is where we are.

When it was revisited in 2017 by the High Court, after several petitions and in the case Navtej Singh Johar v. Union of India, homosexuality was finally decriminalised in India, by 2018.

Two of the lawyers involved in this case were Arundhati Katju and Menaka Guruswamy, who recently came out as a couple, revealing the true meaning of ‘power couple’. They filed a petition and represented lead petitioners in the case, winning the landmark case. In an interview on CNN, Guruswamy spoke about the re-decriminalisation in 2013, “[it] was a loss as lawyers, a loss as citizens. It was a personal loss…it is not nice to be a 'criminal' who has to go back to court as a lawyer to argue other cases”. Arundhati added: “We had a court where we practised as lawyers and this court had just told us that gay people were second class citizens.”

When discussing the new ruling with Columbia Law School, Guruswamy said “It’s a wonderful day,” while celebrating the ruling with fellow lawyers. “We are thrilled with the decision because the court has gone much farther than decriminalisation.” She was commenting on their appeal to love and life, and even the Court’s apology for past mistreatment.

The time, the energy…the journey is exhausting and it’s a stark reminder on how judicial systems work. Now the fight continues but with an onus on rights for the LGBTQ+ community. This includes rights for parents, with adoption, education, the workplace and indoctrinated homophobia.

Since India’s decriminalisation, we’ve seen changes across the world - Trinidad & Toebaygo, Angola and Botswana in South Africa have decriminalised same sex acts. Taiwan became the first Asian economy to legalise same-sex marriage. Each little step is important.

So as we celebrate the one year anniversary of Section 377 scrapped, let’s also continue the conversation and the fight for LGBTQ+ rights in India, the rest of South Asia and the world.