On the occasion of a rather momentous win, let’s trace our steps back to how we reached this day.
Love rejoiced in all the seven colours of the rainbow on the 6th September, 2018. The verdict passed by the Supreme Court, on decriminalising section 377 has been marked as a landmark judgement in the judicial history of India. This archaic law has a long struggle dating all the way back to the famous 2001 Naaz Foundation case.
Justice Nariman, who was part of the five-judge constitution bench said that the roots of this law can be traced back to the ‘Buggery Act’ of 1533. This law was brought in by King Henry VIII in Britain. The law condemned sexual activities that went ‘against’ the law of nature. In India, this law came into being in 1861 under the Indian Penal Code, during the British rule.
Contestations against this law formally began in 2001 when Naaz Foundation filed a complaint against the same in the High Court of the capital. The two-judge constitution bench had eventually in 2009, decriminalised consensual sex amongst adults in India, on grounds of it violating the fundamental rights of the Indian citizen. However, this verdict was overturned by the Supreme Court in 2013, when their two-judge constitution bench reinstated section 377 under the IPC. Following this, they dismissed the review plea as well, thus once again forcing people to be slaves of their fear.
In 2017, the Supreme Court made history by declaring that Right to Privacy was a fundamental right. They further added that the rights of the LGBTQ+ members as well as their sexual orientation, fell under the purview of right to privacy. They essentially declared that the rights of LGBTQ+ community were equally important and were as constitutional as the rights of the any straight person that has existed.
In light of this verdict, a review plea was submitted, earlier this year to a three-judge constitution bench in the Supreme Court in the chilly month of January. The plea was for revisiting the verdict of the Naaz Foundation case of 2013. The case was then turned over to a five-judge bench who made history this past Thursday.
This historic verdict gave people the ultimate freedom, it gave them freedom from a fear that had suppressed them since long. Coming out in large numbers, NGOs like Naaz and groups like Nazariya celebrated the end of this law with colours that were as bright as they were warm. Making rainbows on every corner, of every street, one could see that in a land as ancient as India, love had trumped all.