in a landmark decision, the supreme court has finally struck down a

19th century law criminalising homosexuality in India.

A bench consisting of chief justice Dipak Misra and justices DY

Chandrachud, AM Khanwilkar, Indu Malhotra, and Rohinton Fali
Nariman began hearing petitions against section 377 of the Indian
Penal Code in July this year. On Sept. 06, in a unanimous verdict, the
court ruled that homosexuality is no longer a crime in India, and that
the members of LGBTQ community have the same sexual rights as any
other citizen.

“Section 377, to the extent it criminalises sexual acts between

consenting adults, whether homosexual or heterosexual, is
unconstitutional,” chief justice Misra and justice Khanwilkar said in
their judgment.

The decision follows a protracted struggle by activists and members of

the community against the repressive law, introduced in 1861 when
India was under British rule. It threatened imprisonment, even a
lifetime sentence, and a fine for those who engaged in what it labeled
as “unnatural offences” or intercourse “against the order of nature.”

Here’s a timeline of the battle against section 377 in India, which

began over 20 years ago:

November-December 1991: A document detailing the experiences

of gay people in India is released by the AIDS Bhedbhav Virodhi
Andolan (ABVA), an organisation fighting discrimination against
those affected by HIV or AIDS. The 70-page report reveals the
shocking extent of blackmail, extortion, and violence that gay people
faced, especially at the hands of the police.

The report calls for the repeal of legislation that discriminates against
members of the LGBTQ community, including section 377. But when
released at the Press Club of India, journalists are reportedly so
embarrassed they don’t raise a single question.
May 1994: Controversy erupts after Kiran Bedi, inspector general of
the Tihar jail in Delhi, refuses to provide condoms (pdf) for inmates,
saying it would encourage homosexuality, besides admitting that
inmates indulge in it. In response, ABVA files a writ petition in the
Delhi high court, demanding that free condoms be provided and that
section 377 be recognised as unconstitutional. Despite long-running
efforts to mobilise support, the petition is eventually dismissed in
2001.

December 2001: The Naz Foundation, a sexual health NGO working

with gay men, files a public interest litigation (PIL) in the Delhi high
court, challenging the constitutionality of section 377 and calling for
the legalisation of homosexuality.

September 2004: The Delhi high court dismisses the case, saying
there is no cause of action and that purely academic issues cannot not
be examined by the court. A review petition filed by the Naz
Foundation is also dismissed a few months later.

February 2006: After the Naz Foundation files a special leave

petition for the case, the supreme court reinstates it in the Delhi high
court, citing the fact that it is an issue of public interest. In the coming
months, Voices Against 377, a coalition of NGOs, joins the petition,
while India’s ministry of home affairs files an affidavit against the
decriminalisation of homosexuality.

July 2009: In a landmark judgment, a Delhi high court bench

consisting of chief justice Ajit Prakash Shah and justice S
Muralidhar decides to strike down section 377, saying it violates the
fundamental rights to life, liberty, and equality as enshrined in the
Indian constitution. But critics, including Suresh Kumar Koushal, a
Delhi-based astrologer, challenge the Delhi high court’s decision in the
supreme court.

December 2013: The LGBTQ community suffers a significant blow

when the supreme court overturns the Delhi high court’s
judgment, saying section 377 “does not suffer from the vice of
unconstitutionality and the declaration made by the division bench of
the high court is legally unsustainable.”

June 2016: Navtej Singh Johar, an award-winning Bharatanatyam

dancer, files a writ petition in the supreme court challenging section
377, along with four other high-profile Indians, including chef Ritu
Dalmia and hotelier Aman Nath.

August 2017: A nine-judge supreme court bench hearing petitions

against India’s biometric programme Aadhaar unanimously rules
that privacy is a fundamental right. In its judgment, the court also
says, “Sexual orientation is an essential attribute of privacy.
Discrimination against an individual on the basis of sexual orientation
is deeply offensive to the dignity and self-worth of the individual,”
raising the hopes of those campaigning against section 377.

April 2018: Top hotelier Keshav Suri, who identifies as gay, joins the
fight, files a petition with the supreme court.

July 2018: A five-judge bench of the supreme court, including chief

justice Dipak Misra, begins hearing the petitions filed by Johar and
others against section 377. While supporters of the law claim the
spread of sexually transmitted diseases and the disintegration of
India’s social fabric as reasons to retain it, many of the justices make
encouraging comments. “It is not an aberration but a
variation,” justice Indu Malhotra says.

A central government affidavit leaves the decision on the section’s

constitutionality to the court’s wisdom. The supreme court decides to
reserve its verdict.

September 2018: In a unanimous verdict, the supreme court

decides to scrap section 377, which chief justice Misra describes
as ”irrational, indefensible and manifestly arbitrary,” marking a
triumphant end to a lengthy struggle for justice.
Who is responsible for 377?

A five-judge bench of the Supreme Court just concluded its hearing on a law that
traces its history back nearly 500 years. Section 377 of the Indian Penal Code (IPC) is
modelled on Britain’s Buggery Act of 1533. The prime architect of that Act was the
(in)famous Thomas Cromwell, chief minister in the court of Henry VIII (he of six
wives). The “vice" of sodomy and bestiality that forms the basis of this offence in
today’s Section 377 can be traced directly to that ancient law. Cromwell’s Act made it
a capital offence. Even when there was lack of evidence and the accused was held
guilty of some lesser charge, he was often bound on the pillory—a method by which
public humiliation was added to punitive action.
Section 377 reads as follows: “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 a fine." The law found its way to India when the
architect of India’s IPC in 1860, Thomas Macaulay (often credited with bringing
English education to India), added it into the code at his discretion and without much
debate. The terms “carnal intercourse" and “against the order of nature" are not
defined precisely anywhere in the code. These definitions and interpretations of the
law have emerged with wide variety primarily through case law in British India, and,
subsequently, in a host of misapplied cases in independent India.
In a landmark judgement in 2009, the Delhi high court, opining on Section 377,
excluded acts of carnal intercourse by consenting adults in private. The court found
Section 377 to be inconsistent with the fundamental rights under Article 13(1) of the
Constitution . Additionally, it was found to be in violation of the right to privacy and
dignity (Article 21), freedom of expression and right to equality (Article 19 (1) and
Articles 14 and 15). The judgement also stated that it would unfairly target the
LBGTQ+ community because the acts that are criminalized are closely associated
with homosexuality.
In summary, the Delhi high court found Section 377 to be unconstitutional. The Delhi
bench, adding practicality to wisdom, said that “this clarification will hold till, of
course, Parliament chooses to amend the law to effectuate the recommendation of the
Law Commission of India in its 172nd Report". (As an aside, this report suggests the
complete recast of several sections of the IPC, and, in so doing, recommends the
deletion of Section 377 altogether).
Just four years later, a two-judge bench of the Supreme Court overruled the Delhi
high court judgement on the grounds that it was legally unsustainable. The bench said:
“In light of the plain meaning and legislative history of the section, we hold that
Section 377 will hold irrespective of age and consent." The bench took a literal and
technical view rather than the wider sweep that the Delhi high court had applied,
putting legal technicality above judgement and wisdom.
This philosophical dichotomy is at the root of the legal debate on Section 377. One
side (the literalists) holds that Parliament must enact laws that the judiciary should
enforce, and, therefore, it is up to Parliament to change the law. The other side (the
pragmatists) has always maintained, as the incumbent government just stated, that the
courts must opine if Parliament is unable or unwilling to modernize a 150-year-old
law. Earlier this month, the Supreme Court began to hear a clutch of appeals
challenging the constitutional validity of Section 377. The court has now reserved its
judgement. However, there have been many statements made by the bench that make
it sound likely that the court will rule in favour of the Delhi exclusion. Justice
Rohinton Fali Nariman has said that “the whole object of the fundamental rights
chapter is to give power to the court to strike down laws that majoritarian
governments do not touch due to political considerations. We are not bothered about
what government does. They may enact, repeal, do whatever they want. It is our duty
to uphold fundamental rights." The bench added: “If Section 377 of the IPC goes
away entirely, there will be anarchy. We are solely on consensual acts between man-
man, man-woman. Consent is the fulcrum here. You cannot impose your sexual
orientation on others without their consent."
One other factor in favour of the Delhi exclusion is an intervening and major
judgement on privacy made in the Puttuswamy case. A nine-judge bench upheld the
right to privacy as a constitutional right in 2017. That judgement will likely combine
with a pragmatist view and offer the Delhi exclusion on Section 377.
The broader question on whether the right to privacy in the Puttuswamy case and the
Delhi exclusion on Section 377 imply judicial overreach or merely judicial
interpretation in the context of weak and highly political governments, remains. The
nine-judge bench for Puttuswamy and the five-judge bench on Section 377 (if they
rule in favour of the Delhi exclusion) will make it settled law for now.