The legal recognition of same-sex marriage in India is currently being discussed in the Supreme Court. Same-sex partners from around the country approached the Supreme Court with a plea stating that same-sex marriages should be legalised under the Special Marriage Act. While the hearing will resume tomorrow, May 9, a favorable decision, in this case, would make India the 35th country worldwide to allow marriage equality.
Notably, this same court granted certain rights to the transgender community in 2014 and scrapped the law that criminalised same-sex relationships in 2018. But this wasn’t always the case. Just 30 years before this, the same India that now allows people to take lovers of the same sex was an India that persecuted gay people openly. If people used to come out as gay or queer, they could even lose their jobs.
So, how did the country make this transition from 1861 to 2023? Today in Classes With News18 we would walk you through a brief history of LGBT laws in India.
Pre-Independence India
During British rule in 1860, homosexual intercourse was considered unnatural and was declared a criminal offence under Chapter 16, Section 377 of the Indian Penal Code. Section 377 was introduced by British India, modelled 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, criminalising anal penetration, bestiality and homosexuality, in a broader sense.
Section 377 deals with “unnatural offences,” and holds “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.” The law allowed the judiciary to “punish” LGBT individuals with up to 10 years in jail as well as a fine.
Post-Independence India
After independence, on November 26, 1949, the right to equality was implemented under Article 14 but homosexuality remained a criminal offence. In the years leading to this, members of the LGBT community faced persecution and ostracism in many forms.
Decades later, on August 11, 1992, the first known protest for gay rights was conducted. In 1999, Kolkata hosted India’s first Gay Pride Parade. The parade, with only 15 attendees, was named Calcutta Rainbow Pride.
Pride Movement in India
2009- In 2009, the Delhi High Court, in Naz Foundation vs Govt, of NCT of Delhi, ruled that Section 377, which criminalised same-sex relationships, was unconstitutional, and struck the law down, decriminalising homosexuality in India for the first time. It stated that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights protected by India’s Constitution.
The verdict, which was hailed as a victory for LGBT rights, was challenged by several anti-gay rights groups on religious, political, and social grounds, who claimed that the right to privacy did not include the right to commit an offence and that decriminalising homosexuality would affect the institution of marriage.
2013- In the Suresh Kumar Koushal and Another v. NAZ Foundation and others case in 2013, the Supreme Court overturned the Delhi High Court Naz Foundation v. Govt. of NCT of Delhi case and reinstated Section 377 of the Indian Penal Code. The SC reversed the Delhi HC’s decision to decriminalise homosexuality, stating that “it was up to the Centre to legislate on the issue.”
2015- In late 2015, MP Shashi Tharoor introduced a bill to decriminalise homosexuality but it was rejected by the Lok Sabha.
2017- In August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttuswamy judgement. This gave renewed hope to LGBT activists.
2018- On September 6, 2018, the Supreme Court ruled unanimously that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”. A five-judge SC bench, which included the then-Chief Justice Dipak Misra passed a historic order. The verdict came in a petition by Indian choreographer Navtej Singh Johar and 11 others challenging the constitutional validity of Section 377.
The change in law was welcomed by the LGBT community and hailed as a victory for LGBT and human rights. In his verdict, the then Chief Justice Dipak Misra wrote: “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards the full development of his/her personality that we can call ourselves a truly free society.”
The day was cause for celebration for thousands if not lakhs of Indians. However, while the scrapping of the archaic law has been welcomed by the LGBT community, activists say that more needs to still be done to actively support the LGBT community. This includes better protections for transgender persons, and civil union or marriage rights for same-sex couples. The battle against Section 377 has ended but the bigger battle for equal rights for the LGBT community is still ongoing.
To learn about other topics taught in school, explained by News18, here is a list of other Classes With News18: Queries Related to Chapters on Elections | Sex Versus Gender | Cryptocurrencies | Economy & Banks | How to Become President of India | Post Independence Struggle | How India Adopted Its Flag | Formation of States & United India | Tipu Sultan | Indian Teachers Day Different from Rest of the World |Queen Elizabeth & Colonialism | MCD Polls
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