The People Vs. Section 377: 150 Years Plus And Counting

Here is a timeline of the cases and the people who have fought for the law to be repealed, so that their part of the Indian population is treated as equally as any other.

The Indian Penal Code was first instituted in 1860, when India was still very much in the colonial grip of the British Raj. Many laws under the then established IPC have been retained as they were, with little or zero amendment, and it seems, that the Indian mindsets have moulded themselves to it as well. Sadly enough, Section 377 of the Indian Penal Code, is one of those regressive laws that have not changed since then, and it has been a fight for the LGBTQ community ever since. Here is a timeline of the cases and the people who have fought for the law to be repealed, so that their part of the Indian population is treated as equally as any other:

1994: AIDS Bhedbhav Virodhi Andolan, also commonly known as the ABVA, was India’s first known public activist movement against AIDS and was founded way back in 1988. The organization first came to prominence with the publication of its seminal report Less Than Gay: A Citizens’ Report on the Status of Homosexuality in India in 1991, which appealed to the lawmakers for equal rights for LGBTQ people, with an emphasis on subjects such as same sex marriage and parenting, and the repeal of Section 377 from the Indian Penal Code. In 1994, when the then Inspector General of Prisons, Kiran Bedi, openly stated that there is no homosexual activity among the prisoners of Tihar Jail, despite highly qualified medical practitioners and social workers confirming the exact opposite. ABVA stepped in, filing a petition against Section 377 and openly opposing Bedi’s stance on the issue. The petition lies dormant.

1998: Fire, possibly Bollywood’s first mainstream lesbian film, is released. Multiple Hindu extremist groups like the Bajrang Dal, Shiv Sena, and even members of the Bharatiya Janta Party, openly vandalize and stop screenings of the film in Mumbai, Delhi, and other cities. The then Chief Minister of Uttar Pradesh, Manohar Joshi, condones the violence. The film’s director Deepa Mehta, Bollywood actor Dilip Kumar, filmmaker Mahesh Bhatt submitted a 17-page petition to the Supreme Court asking that a “sense of security” be provided, in addition to basic protection, so that the film could be screened smoothly, invoking the fundamental human rights to equality, life and liberty, freedom of speech and expression, freedom of conscience, free expression of religious practice and belief, and the right to hold peaceful meetings. A number of civil rights groups, women’s groups and organizations gathered to support the film’s screening and to counter the violent protests.

2001: In April, Arif Jafar, social worker and founder of the Bharosa Trust (an organization that works with MSM and transgender individuals), is subjected to police brutality and homophobia for 47 straight days. He is accused of “running a gay racket” by the police, and his office premises are ransacked. He filed a writ petition against Section 377; the case still drags on.
Naz Foundation, a non-governmental organization that focuses on spreading awareness and ending stigma around HIV/AIDS, and other sexual health taboos, files a PIL (Public Interest Litigation) challenging the constitutionality of Section 377. Naz Foundation closely worked in association with the Lawyers Collective (an NGO focusing on LGBTQ and women rights; founded by senior Supreme Court lawyers Indira Jaising and Anand Grover) on this case. Founded by Sivananda Khan and Poulomi Desai in 1990, the organization was envisioned as a possible reply to the lack of governmental efforts in solving the HIV/AIDS epidemic problem. The NGO quickly became a household name and a pioneering organization in the Indian LGBTQ community for picking up the case after ABVA.

2002: Joint Action Committee Kannur (JACK) submitted an affidavit disagreeing with the Naz Foundation and NACO’s contention that Section 377 hampers HIV/AIDS prevention and treatment. Essentially, they argued that Section 377 in fact served to prevent the spread of HIV by deterring people from engaging in high-risk activity. They also denied that HIV causes AIDS.

2003: The Ministry of Home Affairs files an affidavit in favour of Section 377, saying that Section 377 helps prevent AIDS, and that homosexuality was alien to the Indian society.

2004: The Delhi High Court dismisses the petition by Naz, saying “no cause of action has arisen”, as well as a review regarding the same.

2006: The National AIDS Control Organisation, an arm of the Union Health Ministry (then headed by Dr Anbumani Ramodass) filed an affidavit in the court saying that the existence of Section 377 on the statute books is a serious impediment to HIV/AIDS prevention work in the country.

Former BJP member B.P. Singhal files a petition for Section 377 to be upheld, stating that homosexuality is against Indian culture.

Another intervention is filed by a coalition of human rights, women’s rights, queer rights and child rights groups in Delhi called Voices against 377 supporting the contention of Naz Foundation that the law should be read down.

After petitioners went to the Supreme Court challenging the Delhi High Court judgment, the apex court asks the Delhi HC to hear the case again, saying it is a matter of public interest.

2008: The matter was posted for final arguments before Chief Justice Shah and J. Muralidhar.

2009: India’s new law minister Veerappa Moily agrees that Section 377 is outdated.

The Delhi High Court strikes down Articles 21, 14, and 15 of Section 377, almost 150 years from its inception, thereby decriminalising homosexual acts involving consenting adults throughout India. However, the judgment is short-lived, due to the later Supreme Court ruling on the matter.

The Supreme Court issues a notice after Suresh Kumar Koushal, an astrologer, challenges the judgment of the Delhi High Court.

Around 15 other special leave petitions (SLPs) are filed in favour of Section 377 to be reinstated soon after.

2011: Following the wave of opposing SLPs, Minna Saran, the manager of a beauty salon in Le Meridien, and mother to Nishit Saran, maker of the 1999 documentary Summer in My Veins, files an intervention with 18 other parents of LGBTQ individuals.

Shekhar P. Seshadri, a psychiatrist and professor of the Department of Child and Adolescent Psychiatry in NIMHANS (National Institute of Mental Health and Neurosciences), India, along with 12 other mental health professionals file an SLP against Section 377.

Noted professor Nivedita Menon and 15 other academicians, as well as a group of law academicians including Ratna Kapur (former Director of the Centre for Feminist Legal Research), come together to file another such SLP.
Filmmaker Shyam Benegal also joined these ranks.

2012: Final arguments before the Supreme Court commence.

2013: In the Suresh Kumar Koushal and another v NAZ Foundation and others case, the Supreme Court does not find enough reason for portions of Section 377 to be declared unconstitutional and overturns the Delhi High Court judgment as per a two judge bench of G.S. Singhvi and S.J. Mukhopadhyaya. Singhvi retires later.

Global Day of Rage demonstrations organized in over 30 cities worldwide in protest.

The United Nations human rights chief, Navi Pillay, voiced her disappointment at the re-criminalization of consensual same-sex relationships in India, calling it “a significant step backwards” for the country. The then Secretary General of the UN, Ban Ki-moon, also stressed on the need for equality and opposed any discrimination against lesbians, gays and bisexuals.

The Indian social media is replete with backlash over the judgement. Dozens of Bollywood personalities such as Imran Khan, Kalki Koechlin, Amitabh Bachchan, Aamir Khan, Celina Jaitley, Twinkle Khanna, John Abraham, Karan Johar, Farhan Akhtar, Riteish Deshmukh, Shruti Haasan, Sonam Kapoor, Anushka Sharma, and many more express their disappointment and anger on Twitter and other public virtual platforms.

Nobel Laureate Amartya Sen and openly gay Padma Shri novelist Vikram Seth protest against the ruling.

2014: The Naz Foundation files a review petition and a curative petition against the 2013 judgement. The Supreme Court rejects both pleas. The National Legal Services Authority (NALSA) files a petition in association with Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathy, a renowned Hijra activist. The Supreme Court recognized transgender people as belonging to a third gender category, giving them the right to self-identify as transgender for all official purposes, and were given reservation status in admissions to educational institutions and jobs.

2015: In September, first time author Manish Jani launched a fiction book titled 377 that revolves around four youngsters finding themselves in a unique situation where they are compelled to raise their voices against Section 377 of Indian Penal Code.

Shashi Tharoor of the Indian National Congress initiates a private member’s bill in the Lok Sabha to abolish Section 377 in December. However, the bill gets massively rejected in the first round of the procedure, with a vote count of 71-24.

2016: More Curative petitions referred to a Constitution Bench of five judges. This step showed that the Supreme Court was willing to give Section 377 reconsideration in favour of the LGBTQ community, and hopefully reverse the Koushal judgement.

Five eminent and openly gay personalities from different walks of life come together to file a fresh writ petition in the Supreme Court against Section 377 on 27th April. Bharatnatyam dancer Navtej Singh Johar, renowned journalist Sunil Mehra, celebrity chef Ritu Dalmia, Neemrana chain of hotels co-founder Aman Nath, and business executive Ayesha Kapur, all claim to have been personally aggrieved due to the regressive laws of Section 377, resulting in a direct violation of their fundamental rights. They ask for a new set of rights, including ‘Right to Sexuality’, ‘Right to Sexual Autonomy’, ‘Right to Choice of a Sexual Partner’ to be part of the Right to Life under Article 21 of the Indian Constitution. The matter was to be heard from 17 January 2018 by a 5 Judge Constitutional Bench of the Supreme Court.

Three transgender women from Bengaluru, including activist Akkai Padmashali, also file a writ petition.

The five-judge bench to consider the curative petitions has not been constituted since.

2017: The Supreme Court, in a landmark judgment in August 2017, held Right to Privacy as a fundamental right. It also observed that “sexual orientation is an essential attribute of privacy”. It said that 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 matter was presided upon by a nine-judge bench of the Supreme Court, in the KS Puttaswamy v Union of India, which emphatically articulated and upheld the right to privacy as a fundamental right. In this judgment the court threw serious doubt on whether its Koushal judgment of 2013 was correct, through many observations that have been well documented in various media.

2018: In early April, a private appeal for funding the lawyering of the Navtej petition was put out by friends of these lawyers, representing that the lawyering was taking place for the benefit of the community as a whole. This was done without keeping the rest of the community in loop, despite the initial agreement to coordinate efforts at the lawyers’ meeting held after the privacy judgment).
The Navtej Singh Johar petition is assigned to a Constitution Bench.

Naz India, Voices against 377, mental health professionals, and university teachers, etc., are among the many parties involved in the course of hearings and curative petitions both in the Delhi High Court and the Supreme Court, and who have applied to be permitted to intervene and be heard in the Navtej case. All of these intervention applications will now be listed and taken up by the five-judge Constitution bench when it hears the Navtej petition. However, there is no guarantee that the interventions will be allowed.

Mumbai-based NGO Humsafar Trust, headed by LGBTQ rights champion Ashok Row Kavi, moves the Supreme Court against Section 377. Vivek Anand, Gautam Yadav and Yashwinder Singh are other members of the trust involved.

More writ petitions by LGBT persons are filed. One such petition is by Keshav Suri, hotelier and executive director of The Lalit Suri Hospitality Group. Suri’s lawyer told the court that the “petitioner himself has suffered mentally and been stigmatised on account of his sexual orientation at personal and professional fronts.”

The Supreme Court agrees to hear a petition filed by a batch of 20 current and former students of Indian Institutes of Technology, also on behalf of the informal IIT queer collective, Pravritti. The youngest petitioner is 19 years old, while the oldest is an alumni member of the 1982 batch; all are IIT graduates from various disciplines who identify as lesbian, bisexual, gay, and transgender in this group. Judgement is being awaited for this petition.
More petitions underway.

 

The likelihood of a Supreme Court hearing on Section 377 is in the latter half of 2018 at the earliest, as per the Lawyers Collective.

About the author

Nikita Saxena

Nikita believes that the future is female (we have all read the t-shirts) and would like to make something of herself that isn’t just remembered as a “woman (insert editor, writer, cinematographer, etc. here)”. A pop culture and universal media geek, she completed her Bachelors in English from Lady Shri Ram College, New Delhi and her Masters in Mass Communication from AJK-MCRC, Jamia Millia Islamia, New Delhi. Currently, she works in Mumbai as a part of the burgeoning Indian entertainment industry, and hopes to make a big superhero film of her own soon one day.
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