Article 377: Weighing The Same-Sex Acceptance After Five Years Of Decriminalisation

On September 6, 2018, in a 493-page groundbreaking verdict, the Supreme Court read down the draconian Article 377 from the Constitution, decriminalising homosexuality in the country. The Navtej Singh Johar & Others. v. Union case is hailed as historical in the fight for India’s LGBTQIA++ community to gain equal rights, in every sphere of life.

A five-judge Bench of the then Chief Justice of India Dipak Misra, Justices R. F. Nariman, D Y Chandrachud, A M Khanwilkar, and Indu Malhotra declared the section ‘unconstitutional’ and decriminalised consensual sexual conduct between adults of the same sex. The article read, “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 verdict was heartily welcomed by queer rights activists and it indeed opened up several pathways towards ascertaining rights. However, after five years, how much acceptance has come from Indian society and political spaces?

In August 2022, while speaking at an event Justice Chandrachud, said, "Equality is not just be achieved by the decriminalisation of section 377 of IPC alone, it must extend to all spheres of life including the home, the workplace, the public place, that we occupied." 

"While the decision in Navtej (Sec 377) was momentous, we have a long way to go. The Beatles famously sang 'All you need is love, love; Love is all you need'. At the risk of ruffling the feathers of music aficionados everywhere, I take the liberty to disagree with them and say - perhaps we need a little more than love. Structural changes as well as attitudinal changes are essential," the CJI added. 

A recent example of the same could be gauged through the efforts to legalise same-sex marriage. Several rights activists and advocates, including senior advocate Menaka Guruswamy noted that marriage is a “bouquet of rights” that the community is deprived of. As of today, India’s queer (LGBTQIA+) population is not legally entitled to such rights and protections even though the struggle for their recognition has been kept alive in the country’s courts and legislature for decades. 

During the hearings of the Marriage Equality petitions, a repartée between CJI DY Chandrachud and Solicitor General Tushar Mehta (representing the Indian government), the CJI remarked that the notion of a biological man or woman was not absolute and that “it’s not just a question of what your genitals are.” To which, Mehta insisted that it was indeed a question of one’s genitals, whereby a man would mean a “biological man” only, limiting in his interpretation the legal definition of marriage to be exclusively between “biological men” and “biological women.”

The Bench observed the bigger canvas on just replacing the gendered language with ‘spouse’. “We are unwilling to go into the broader canvas or personal law issue. We are going to examine the limited issue of whether the provisions of the Special Marriage Act can be read down to mean ‘spouse’ in place of ‘man or woman’ for the purpose of marriage.”

The verdict, which has been reserved, challenges the fate of 20 petitions challenging four legislations—the Special Marriage Act (1954), the Hindu Marriage Act (1955), the Foreign Marriage Act (1969), and the Citizenship Act (1955)—all of which understand marriage as a heterosexual union between opposite-sex couples.

The conundrum of the 10-day hearing seeking equal access to rights for same-sex couples, which was heavily opposed by the Central government and a large chunk of the society, puts back the focus on a society run by the cis-het majority that perhaps wants to boast acceptance by denying several queer communities, who are still living life as second-class citizens, their rights.

In, ‘Understanding The Supreme Court's Anxieties Over Marriage Laws’, Gauri Pillai expands on the oft-repeated phrase amongst the judges at the hearings of same-sex marriage: ‘How far can the Court go?’ In an earlier interview with Outlook, Uma, a transgender activist who heads the NGO Jeeva, answers the question: ’How does the denial of marriage affect members of the transgender community at a personal and social level?’

This and many. On the fifth anniversary of Article 377 being read down by the apex court, Outlook looks back on its older issue, on April 11, ‘Indian Family Unit vs Love’, that hosts a diversity of arguments made for and against the legalisation of same-sex marriages with a view to understanding what is at stake for everyone involved.