Decriminalization of Section 377

On 6th September 2018, the Supreme Court of India decriminalized homosexuality. The 1861 colonial-era law, which remained in force for 157 years, was struck down by a five-judge constitutional bench. 

In the landmark judgment, the bench termed the part of Section 377 which criminalized unnatural sex as “irrational, indefensible, and manifestly arbitrary”.

For the people of the LGBTQ+ community, this journey to liberty has been fraught with challenges. 

The unanimous judgment cited violation of fundamental rights and ended centuries-old ideas that did not allow people the freedom to live their life without prejudice and discrimination. 

The five -judge bench behind the landmark judgment comprised the then Chief Justice of India Dipak Misra, Justices Indu Malhotra, R.F. Nariman, D.Y. Chandrachud, and A.M. Khanwilkar.

Justice Indu Malhotra had remarked in her reading of the judgment that sexuality lies at the core of a human being’s innate identity, and “society owes an apology to the LGBTQ community for the years of stigma imposed on them”.

Justice Dipak Misra, who was writing for himself and Justice A.M. Khanwilkar, acknowledged bodily autonomy as a part of a person’s dignity. He said that societal morality cannot overturn the fundamental rights of even a single person.

Borrowing a quote by German writer Johann Wolfgang von Goethe, he wrote, “I am what I am. So take me as I am”. This quote has symbolized the movement for decades.

Justice Chandrachur questioned the very meaning of the oft-used phrase “order of nature”. 

He said, “Who decides what is natural and what is unnatural? Can the state be allowed to decide? Denial of the right to sexual orientation is a denial of privacy rights. Courts have the task not to allow to push citizens' lives into obscurity because of some colonial law”.

Justice Nariman stressed the undoing of the stigma of mental illness attached to homosexuality. “The present definition of mental illness in the 2017 Parliamentary statute makes it clear that homosexuality is not considered to be a mental illness. This is a major advance in our law which has been recognized by Parliament itself.”

In 1994, the AIDS Bhedbhav Virodhi Andolan (ABVA) filed a legal petition for decriminalizing homosexuality in the Delhi High Court, which was rejected. Then, in 2001, the Naz Foundation filed another legal petition in the Delhi High Court, which was again rejected. 

But in eight years, on July 2, 2009, the same Delhi High Court would scrap portions of the section as unconstitutional. Justice A.P. Shah, then chief justice of the Delhi High Court, and Justice S. Muralidhar gave the historic judgment. 

This decision, however, did not go unchallenged. In 2013, the Supreme Court overturned the High Court’s verdict - but things that were already set in motion would not pause.  

The largely criticized 2013 apex court decision would soon change in 2018, this time with bipartisan support.

This moment took its time to arrive. There have been several people who relentlessly worked to get India to the cusp of this change. 

The five Supreme Court and two Delhi High Court justices aside, there was Anjali Gopalan who set up the Naz Foundation in 1994 and fought till the Naz Foundation v. Govt. of NCT of Delhi case was won in 2009. 

There was also Anand Grover, who led the Naz Foundation case. And then, there was the nine-judge bench that in 2017 declared the Right to Privacy fundamental, and made the reading down of Section 377 possible. 

The last mention goes to advocates Menaka Guruswamy and...

...Arundhati Katju, who led the 2018 case, and the 20 Indian Institute of Technology (IIT) students and alumni who were the petitioners in the case.