LGBT community to face their final and biggest battle for equality and dignity

Updated: Jan 13, 2018, 10:53 IST | Debjani Paul

After endless twists and turns, the LGBT community may well be facing their final and biggest battle for equality and dignity, as the Supreme Court decides to re-examine Section 377

Illustration/Uday Mohite
Illustration/Uday Mohite

What's under review
>> The SC will only revisit the parts of Section 377 that criminalise same-sex acts between consenting adults
>> At the core of the issue are the Rights to Freedom, Life, Privacy and Equality under the Constitution of India
>> Section 377 will remain as is when it comes to non-consensual sex or sexual offences against minors
>> The law also applies to sexual offences against animals - this part will remain as is

You have the right to privacy
In August 2017, the SC declared the Right to Privacy a fundamental right - a right that also extends to sexual orientation. "Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution," the SC observed. This ruling contradicts the SC's 2013 judgment that reinstated Section 377. The Right to Privacy judgment also limits the scope of Section 377, making the anti-homosexuality law hard to defend legally.

It's 2018, and India is one of the last remaining democracies in the world where it's still considered a crime to love someone of the same sex - a crime punishable by life imprisonment under Section 377 of the Indian Penal Code.

Nearly a century-and-a-half after the draconian law was introduced by the British Raj, India had briefly joined the ranks of progressive nations after the Delhi High Court found that a ban on homosexuality was a violation of constitutional rights. But that victory was short-lived, as the Supreme Court (SC) in 2013 reinstated Section 377, declaring it was not unconstitutional.

Among the grounds for the judgment, the SC had stated that a "miniscule fraction of the country's population constitutes lesbians, gays, bisexuals or transgenders." The court then left it to Parliament to strike down Section 377.

Five years later, it is finally time to undo all the wrong done to the Lesbian, Gay, Bisexual and Transgender (LGBT) community, with the SC having decided to re-examine its earlier verdict on Section 377.

Community speaks

Vikram Phukan, playwright
'There's little point dilly-dallying. First you put the ball in the government's court, then refer it to a wider bench. In the end, only a progressive ruling will make a difference.'

Ashok Row Kavi, activist
'There is nothing new about this. Where is the constitutionality of Section 377 at all, so why debate it? These are games being played at some level and it has been 15 years now of this fight. Still there is no end.'

Twists and turns

1861: Section 377 is introduced

2001: Naz Foundation files petition to decriminalise Section 377

2009: Delhi High Court declares 377 violative of the Constitution

2013 and 2014: SC states 377 is not unconstitutional

2016: SC agrees to hear Naz Foundation's curative plea

2017: In August, the Supreme Court rules that the Right to Privacy is a fundamental right, and that the same privacy also extends to sexual orientation

2018: On January 8, SC decides to re-examine legitimacy of Section 377

51
No. of cases filed in Mumbai in 2016

58%
No. of Indians who believe the LGBT community deserves equal rights

157
No. of years ago Section 377 was introduced

2,187
No. of cases filed across India under Section 377 in 2016

Sources: National Crime Records Bureau and ILGA

Inputs by Hemal Ashar

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