Sec 377: To Be Or Not To Be

Sec 377: To Be Or Not To Be

Finally the moment that millions of Indians have been waiting for is here. The Supreme Court of India is all set to hear the multiple petitions against the archaic 1861 law banning homosexuality in India and this time there seems to be a ray of hope.

SCI with rainbow in background

The Indian Supreme Court is all set to begin a landmark hearing on homosexuality from today (10 Jul 18), and the Indian LGBT community, LGBT allies and human rights activists are now hoping this will be the last leg of a 20-year legal battle to decriminalise gay sex.


The Hearing Begins

While the court will begin its hearing as to why gay sex should not fall under the purview of the law and should not be criminnalised this particular hearing is set to have one massive difference. For the first time ever, a few well-known gay individuals, a hotelier, a famous chef, and a classical dancer, are slated to give personal accounts of how the 1861 law has ruined their lives, thrust shame on them, and directly affected their chances of happiness.


Says Anjali Gopalan of the Naz Foundation (the New Delhi NGO working to prevent HIV and AIDS) that filed the very first petition in 2001, “The timing feels just right. And this time we are really hopeful that the court strikes down the draconian law once and for all.”


“The momentum has built up for this moment. We have a clutch of petitions from people from all walks of life. We have celebrities giving their personal testimony. Then we have had an important ruling recently by the courts upholding privacy. And we have seen a shift in recent years, more people coming out to take a stand. The gates have opened, as it were, and you can’t close them now,” Gopalan said.


Rainbow hands in handcuffs

Sec 377 states that: whoever has carnal intercourse “against the order of nature” with any man, woman or animal, will be punished with imprisonment for life.


The Delhi High Court Verdict Of 2009

Over the years Section 377 has sparked numerous controversies. It faced challenges in both the High Court of Delhi and the Supreme Court. In 2001, Naz 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). 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 judgement in 2009 by Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, which decriminalized consensual sexual acts between adults. Furthermore, this judgement was to be in force until the Parliament decided to amend Section 377.

Appeals In The Supreme Court

Amul GirlThis led to various appeals being made to the Supreme Court, challenging the High Court’s authority to change a law. While the Supreme Court dismissed numerous such appeals and the then Attorney General G. E. Vahanvati made it clear that he wasn’t planning to file an appeal against the verdict of the Delhi High Court; numerous appeals  challenged the validity of the judgement made by the High Court. Finally on December 11th, 2012 a panel of two Supreme Court judges overturned the decision that the High Court had made in 2009. The judgement stated that the power to amend the law was with the Parliament and not the High Court, thus their (High Court’s) judgement was constitutionally unstable. Thus, the Supreme Court recommended that the Parliament address the matter. As only they had the power to amend the existing laws.

Global Day Of Rage

Sec 377 protests

The shock waves sent out by the Supreme Court  by reversing the High Court’s judgment, prompted the ‘Global Day of Rage’ demonstrations in 30 cities worldwide. Outrage over that ruling opened the floodgates to numerous eminent Indians coming out openly – people who had previously kept their sexual orientation resolutely private.

Group after group representing gay people and the LGBT community filed petitions protesting the ruling. It is this clutch of petitions which will be heard in court from today.

Momentum For Change

The outrage fueled the momentum for change and active LGBT rights activist Ashok Row Kavi was unstoppable after that. He claimed mental and emotional torture for all those who had ‘come out’ to their friends, family or colleagues after the groundbreaking Delhi High Court Ruling of 2009. What was to be of them? There was no hiding now. Having stepped out it is as good as impossible to crawl back into the closet.


revellers at Pride Parade

A harried Ashok Row Kavi says, “At Hamsafar Trust, we got calls from parents, concerned about what would happen to their children. We got calls from HR managers in companies. They asked if the police might come and arrest employees who had come out. Our helpline faced a massive deluge. There was just no turning back after that. We had to keep going and keep pushing,” said Kavi.

A Ray Of Hope

One factor that presents a ray of hope is the Supreme Court’s 2017 August ruling on the right to privacy. The court decreed that privacy was a fundamental right of all Indians. 

It added that sexual orientation was an essential attribute of privacy.

Legal scales and gong and gavel

Supreme Court lawyer Suraj Sanap, representing some petitioners, says right to privacy means the  ruling legalising gay sex is pertinent. Sanap feels that the privacy ruling was effectively a major development in jurisprudence. It has laid the ground for what gay people and activists are hoping will be a ruling decriminalising gay sex.

The supreme court’s ruling on privacy last year was critical. It was a de facto overturning of its own earlier 2013 ruling against gay sex. That does not leave the judges with any leeway to argue otherwise than to legalise gay sex.

So people, lets get ready to roll out the RAINBOW!

Written By: Delshad Master

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