The Supreme Court is currently debating whether to give legal recognition to same-sex marriage in India. Same-sex partners across the country have approached the Supreme Court, saying same-sex marriages should be legalized under the Special Marriage Act. While the hearing will resume tomorrow, May 9, a favorable verdict in the case would make India the 35th country in the world to allow marriage equality.
Notably, the same court granted certain rights to the transgender community in 2014 and struck down a law criminalizing same-sex relationships in 2018. But it was not always like this. Just 30 years ago, the same India that now allows people to take same-sex lovers was an India that openly persecuted gay people. If people came 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 will take you through the brief history of LGBT laws in India.
India before independence
During the British rule in 1860, homosexual intercourse was considered unnatural and declared a criminal offense under Chapter 16 of Section 377 of the Indian Penal Code. Section 377 was introduced by British India, based on the Buggery Act of 1533. This section of the Buggery Act was drafted by Thomas Macaulay in 1838 and was enacted in 1860. It defined ‘bagri’ as an unnatural sexual act. Thus, anal penetration of God and man, in the broadest sense, criminalises bestiality and homosexuality.
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 both shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. The law allows the judiciary to “punish” LGBT persons with up to 10 years in prison as well as a fine Gave.
India after independence
After independence, on November 26, 1949, the Right to Equality was implemented under Article 14 but homosexuality remained a criminal offence. In the years that followed, members of the LGBT community faced harassment and ostracism in many forms.
Decades later, on August 11, 1992, the first known protest for gay rights was held. In 1999, Kolkata hosted India’s first Gay Pride Parade. The parade, which had only 15 attendees, was named Calcutta Rainbow Pride.
pride movement in india
2009- In 2009, in Naz Foundation v Government of NCT of Delhi, the Delhi High Court ruled that section 377, which criminalises same-sex relationships, was unconstitutional, striking down a law decriminalizing homosexuality in India for the first time. Gave. It states that criminalizing consensual homosexual sex between adults is a violation of fundamental rights protected by the Constitution of India.
The verdict, which was hailed as a victory for LGBT rights, was challenged on religious, political and social grounds by several anti-gay rights groups, who claimed that the right to privacy did not include the right to commit a crime and It reduces criminalisation. Homosexuality would affect the institution of marriage.
2013- In 2013, in the case of Suresh Kumar Kaushal and others v. NAZ Foundation and others, the Supreme Court overruled the Delhi High Court Naz Foundation v. Govt. Restored the NCT of Delhi case and section 377 of the Indian Penal Code. The Supreme Court overturned the Delhi High Court’s decision to decriminalize homosexuality, saying “it is up to the Center to legislate on the issue”.
2015- In late 2015, MP Shashi Tharoor introduced a bill to decriminalize homosexuality, but it was rejected by the Lok Sabha.
2017- In August 2017, the Supreme Court in the landmark Puttuswamy judgment upheld the right to privacy as a fundamental right under the Constitution. It gave new hope to LGBT activists.
2018- On September 6, 2018, the Supreme Court unanimously ruled that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”. A five-judge bench of the Supreme Court, which included the then Chief Justice Dipak Misra. The verdict was pronounced on 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 judgement, the then Chief Justice Dipak Misra wrote: “Social exclusion, identity alienation and alienation from the social mainstream are harsh realities faced by individuals even today and it is only when each individual is freed from such shackles that Is.” and is able to work towards the full development of his personality in what we can truly call a free society.”
The day was a cause for celebration for millions, if not thousands, of Indians. However, while the abolition of the archaic law has been welcomed by the LGBT community, activists say that more still needs to be done to actively support the LGBT community. This includes better protections for transgender individuals, and civil union or marriage rights for same-sex couples. The fight against Section 377 is over but the larger fight for equal rights for the LGBT community is still on.
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