[Update: In a landmark judgement, the Supreme Court of India scrapped Section 377.]
There’s no denying that Section 377 of the Indian Penal Code has stigmatised an entire section of society. What is deemed as “unnatural sex” by the terminology of the law may seem vague and apathetic but it leaves the queer community with the proverbial short end of the stick. It effectively suppresses any and all sexual identity that is outside the realm of heterosexuality.
With Supreme Court said to pass a verdict on Section 377 today at 10:30 am, we sit tight, holding our breaths in the hopes that today will be the day India accepts love with open arms, in all its forms. We at Homegrown decided to trace the evolution of this draconian law. Here is a list of defining milestones in the timeline of the fight to repeal Section 377.
1861: Introduction of Section 377
Section 377 was introduced while India was still colonised. Brought into effect in 1860, this section was drafted by Thomas Macaulay in 1838 and was modelled on the Buggery Act of 1533. According to this act, ‘buggery’ was defined as an unnatural sexual activity against the will of man and God, thereby, criminalising anal sex, bestiality and homosexuality.
1994: First petition to be filed against section 377
In 1994, AIDS Bhedbhav Virodhi Andolan filed the first ever petition challenging section 377.
2001: Naz Foundation and the petition against Section 377
In 2001, Naz Foundation challenged the constitutionality of Section 377 in the Delhi High Court. They filed a petition demanding the decriminalisation of homosexual relations between consenting adults. This plea was dismissed by the Delhi High Court in 2003 following which Naz Foundation appealed dismissal to the Supreme Court in 2006.
2012: High Court overturned by the Supreme Court
In December 2012, the Supreme Court overturned the HC’s judgement in lieu of it being “legally unsustainable.” Justice G S Singhvi and Justice S J Mukhopadhaya brought to light HC’s negligence which led to overlooking of the fact that only a very small percentage of the population belong to the LGBTQ community and in over 150 years there have been less than 200 prosecutions with respect to section 377.
The Supreme Court recommended the Parliament to address the matter because only they had the power to amend the existing laws.
2015: Private Member Bill rejected by Lok Sabha
In 2015, Shashi Tharoor introduced a private member’s Bill in order to decriminalise homosexuality, which was subsequently voted out by the Lok Sabha.
2016: Instrumental petition filed
Bharatnatyam dancer Navtej Singh Johar, chef Ritu Dalmia, business executive Ayesha Kapur, journalist Sunil Mehra and hotelier Aman Nath filed a petition claiming that their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.” This petition led to Supreme Court reconsidering the validity of Section 377.
2018: Supreme Court begins hearing on Section 377
A five-judge Constitutional bench began hearing petitions challenging Section 377 in 2018. The bench was led by Chief Justice of India Dipak Misra and comprised of Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra.
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