150 YEARS OF PROHIBITION


150 YEARS OF PROHIBITION

By:-     Name-  Kalyani Chandola  

A landmark judgement of decriminalising homosexuality, by a five judge Bench headed by ex-Chief Justice of India HMJ Deepak Misra, has delivered a reflection of the society that we live in today. It is also an image of how the legal system evolved over a period of 150 years of ban on homosexuality. From the filing of a petition by ABVA in the year 1994 for decriminalising of Section 377 of Indian Penal Code to finally achieving equal rights for all citizens in the year 2018, the Indian Judicial System has come a long way.

Some of the most difficult and challenging arguments have taken place in the Court Room to deliver this judgement which gives the LGBTQ community equality and a right to privacy. Section 377 was introduced during the British Raj in the year 1861.The Section was drafted by Thomas Macualay and was based on the Buggery Act of 1533. The act defined buggery as an unnatural sexual act against the will of God and man. It was the first civil law which criminalized homosexual relations. It criminalized any sexual activities against the order of nature and was punishable with death.

Section 377 reads as, “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.”

Adverse to the Indian culture and values, the issue of homosexuality was always on the back burner. The severity of the problem was realised when in the year 1991 when ABVA (AIDS Bhedbhav Virodhi Andolan) released a 70 page report “Less than Gay” which revealed details of experiences of homosexuals in India. It revealed the injustice and horrific blackmail and violence they face, especially at the hands of the police. The report called for repealing of legislation against the LGBTQ community which included Section 377. This report led ABVA to become a voice for the LGBTQ community.

After the release of the report, the Indian Courts had to take cognizance of the problem at hand and for the first time Indian Courts had to deal with Section 377 was when a petition was filed for decriminalisation of the provision in the year 1994. This was in response to a ban on condom distribution by the prison authorities at the instructions of Kiran Bedi who was the Inspector General of the Tihar Jail then. This rendered the inmates at the Tihar Jail vulnerable to HIV/AIDS and other Sexually Transmitted Diseases. The ban was based on the regard that the usage of condoms would promote homosexuality. The petition was subsequently dismissed in the year 2001.

The war had been waged and was not going to die down easily. To further the interest of the LGBTQ community, Naz Foundation, an NGO which deals with HIV/AIDS and sexual health, filed a PIL (Public Interest Litigation) in the year 2001 to challenge the constitutionality of Section 377 in Delhi High Court. The PIL was dismissed on the basis that there is no cause of action. Subsequently a review petition was filed by Naz Foundation which was also dismissed.

Relentless and unfazed, the Naz Foundation once again put its faith in the Indian Judicial System in the year 2006 and filed a Special Leave Petition in the Delhi High Court stating that it is an issue in the interest of the public. After several NGOs joined hands to support the petition, a Delhi High Court bench consisting of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar delivered the landmark judgment to declare Section 377 as unconstitutional in 2009. The Court further stated that it violates the fundamental rights to life, liberty and equality bestowed by the Indian Constitution on each person.

The judgement received a lot of protest and push back. Various religious bodies challenged the judgement of the Court on the basis of morality and that such decisions are against the Indian culture. The Leaders of various religious groups termed this verdict to be an effort to impose the western culture and to promote unnatural sex which is against the Indian Culture.

In the year 2013, Supreme Court overturned the judgement and declared that Section 377 does not suffer from the vice of unconstitutionality and unnatural relations remain criminalized. The country was in shock as the Indian Judicial System declared its verdict. The LGBTQ community though a miniscule part of our population were overlooked and denied their basic rights under Article 14, 15 and 21 of  our Constitution. The LGBTQ community was being punished based on a 150 year old law for being unnatural as per the conservative groups of the society.

To understand the biasness of the judgement delivered in 2013 and how it disregards a particular community in the society from living a life with dignity, an examination of our basic rights under the Constitution is essential. If we analyse Article 14, 15 and 21 together then the articles clubbed together gives each citizen a fundamental right for equality before law without being discriminated against based on religion, caste, creed, sex etc. This ensures each person the right to live their life with dignity and fulfilment.

By criminalising private and consensual sex between two adults of the same gender, Section 377 of Indian Penal Code served as the weapon for police abuse, detention and questioning extortion, harassment, forced sex, payment of hush money and perpetuated negative and discriminatory beliefs towards homosexuals and sexual minorities. By adopting such mannerism the LGBTQ community suffered from a deficiency in receiving adequate sexual education, information and healthcare.

This resulted in a part of our community exposed to unnecessary health risks and rendered efforts by the government and various non-governmental organisations to combat HIV/AIDS futile. The 2013 judgement also violated a person’s right to privacy which the Courts recognised as a Fundamental right later in the year 2017 in below judgement.

In Justice K. S. Puttaswamy (Retd.) & Anr versus Union of India & Ors., the Supreme Court delivered the landmark judgement and expressed that, “Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his “castle”; it is his rampart against encroachment on his personal liberty.

To understand how this Right of Privacy would impact the overall argument to uphold Section 377 valid, we need to refer to the observation of HMJ Ajit Prakash Shah in relation to the Justice K. S. Puttaswamy (Retd.) & Anr versus Union of India & Ors. matter. HMJ Ajit Prakash Shah commented that those who want to support the argument for Section 377 as valid would now only be able to depend upon the concept of reasonable restriction. In this scenario, it would not include a person’s house. Thus, Privacy though not an absolute right but is a right for all to lead a peaceful private life.

After a long battle, in Navtej Singh Johar & Ors versus Union of India thr. Secretary Ministry of Law, the 150 year old prohibition was finally uplifted on the 6th of September, 2018 when the Supreme Court of India decided to announce that the application of Section 377 to consensual homosexual sex between adults was “unconstitutional, irrational, indefensible and manifestly arbitrary. The Constitution of India bestowed upon all persons equal rights. The other parts of the provision relating to sexual relations with minors and bestiality remain in force while the Court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India.

The Indian Judicial system has gone through tremendous activism, creativity and an evolution of thought over the decades and has delivered a verdict which recognises all persons equal in the eyes of law. As Aristotle rightfully said , “the only stable state is the one in which all men are equal before the law”.

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