Section 377: After long battle, it’ll be another fight for right to marry or adopt

On day two of the Supreme Court hearing on Section 377, I want to feel hopeful but experience tells me I should not be too sure this is the light at the end of the tunnel. Or is it? It is nearly 20 years since we took the first step. It was in 2001 that The Naz Foundation (India) Trust along with our counsel, The Lawyers Collective, filed a petition in the Delhi high court asking for a reading down of this law to exclude consenting adults of the same sex from its purview. The reason we did this is the law is also used to prosecute child sexual abuse (at the time there was no POCSO) and bestiality.

A common question is: How many gay people get prosecuted under this law? Clearly, not many but it hangs as Damocles’ sword over their heads. It is used by a highly corrupt police force to harass gay men, and the reason they can do this is because many are not out to their families and police play on these fears. This law did not allow for information on HIV prevention to be made available to the community.

It’s been a long journey with many ups and downs. The one good thing is many joined us on the way, which ultimately resulted in a very progressive judgment by the Delhi high court in 2009 decriminalising homosexuality. It opened the door for many young people to be open about their sexuality. Unfortunately, there was a setback when a two-judge bench of the Supreme Court set aside the Delhi high court judgment in 2013. This came as a shock to the community because in effect it asked people to go back into the closet. This was not possible for those who took this courageous stand.

This was evidenced by the present petition, which has been submitted by five wellknown gay people. There are other petitions too, including from parents of gay people. This shows me there is a definite shift in the way this law is being perceived by society and the importance of having it read down.

Today, the government itself responded saying they leave it to the courts to make the decision. This is significant because they have shifted from the previous stand of opposing reading down 377. Ideally, now, the hope is the Supreme Court gives a judgment that respects the existence of the LGBTQ community. This still will not guarantee rights most citizens of the country take for granted, like the right to marry or to adopt. That’s another journey and another fight. I hope the court settles this debate so no one is criminalised based on whom they want to love and live with.

Anjali Gopalan is executive director, Naz Foundation (India) Trust