Love Actually Equal: Section 377 Struck Down
Homosexuality is NO LONGER an offence in India, declared five Supreme Court judges today in a landmark and emotional victory for India’s LGBTQ movement. Reversing its own 2013 decision, the Supreme Court pointed out that the infamous Section 377, an archaic and controversial Raj-era ban on consensual gay sex, is unjustifiable and essentially, very stupid.
Which means that India’s supreme court has finally banned discrimination on the grounds of sexual preference. This is possibly THE MOST CONSEQUENTIAL judicial ruling of all time: how often do tens of millions of people gain a full measure of such fundamental rights in one fell swoop?
Section 377, which came into effect in 1861, deems homosexual intercourse “against the order of nature” and made the act punishable with possible life imprisonment along with a fine.
“We have to bid adieu to prejudices and empower all citizens,” said the Chief Justice of India Dipak Misra, as he read out the judgment. The four judges of the court cosigned on it.
More than two dozen petitioners submitted court filings that covered thousands of pages, showcasing the emotional toll of continuing to live in the closet, with all the abuse, depression, blackmail, persecution and the coming-out passage-of-rites they undertook, all whilst living under an ominous dark cloud that made their most intimate bedroom activity unlawful.
This new ruling now overturns a 2013 order of the Supreme Court that had restored the validity of Section 377 after the Delhi high court had scrapped it back in 2009.
Justice Misra added: “Only Constitutional morality and not social morality can be allowed to permeate rule of law… Sexual orientation is one of the many natural phenomenon. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights. After judgement in Puttuswamy case, privacy has been raised to fundamental right.”
The Dark History of Section 377
Today’s judgment marks the end of struggle the by the LGBTQ community of India to get fair treatment under Indian law. For decades, community members have faced constant harassment by authorities who have often abused the now scrapped section.
Section 377 was introduced by British India, modeled on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was brought into effect in 1860. It defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalizing anal penetration, bestiality and homosexuality, in a broader sense.
Over the years, Section 377 had sparked widespread controversy with activists attempting to challenge it with the legal means at their disposal. In 2001, Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court. They filed a lawsuit to allow homosexual relations between consenting adults.
Consequently, the supreme court bench, headed by justice GS Singhvi, reversed the order in 2013 and declared homosexuality a criminal offence again. Instead, it said that it is upon the parliament to take a call on scrapping the law.
No one’s surprise, this sparked nation-wide protests and demonstrations against the verdict.
Since then, several petitions had been filed challenging the order. As the protests against section 377 gathered momentum, several high-profile names, including hotelier Keshav Suri and restaurateur Ritu Dalmia also fought to squash the antiquated law.
Ketto & the LGBTQ community
Since its inception, Ketto has been a champion of the ‘Equality For All’ vision for India and has consequently been a strong proponent of LGBTQ rights in the country. Click on the links below to view crowdfunding projects Ketto has been involved with for the community. If you feel inspired, you can perhaps start your own project with Ketto as well.
