• Nandini Jiva

WITHIN THE FOUR WALLS OF INTIMACY:A Brief History of the Queer Movement in India


The fight for queer rights in India has been under the covers for the most part in conversations surrounding the queer movement. Although advocacy and legal battles began much later, in the year 2001, the peoples’ movement for equal rights for the queer community cultivated through several minuscule milestones.



The archaic Section 377 was a British concept that originated through the Buggery Act,

1533, enacted by Henry VIII. “Buggery” was synonymous with anal intercourse or sodomy.

The Indian Penal Code was enacted in 1861, a year before buggery was repealed to be a

capital offence in England. As a result, the provision remained a part of the Constitution,

paving way for numerous instances of violence and brutality targeted towards the queer

Community.

November 1991: The AIDS Bhedbhav Virodhi Andolan (ABVA) released a 70-page

document titled “Less Than Gay”, depicting the plight of homosexuals in India and forms of

injustice that the community was enduring. It called for scrapping Section 377. The document was an important spark in giving birth to other collectives and organisations that advocated for decriminalisation.


August 11, 1992: The first known protest for gay rights in India was organised outside the

police headquarters in the ITO area of Delhi. The protest was led by the ABVA, to oppose

the practice of picking up men from Connaught Place merely on suspicion of homosexuality.

The protest did not gain much traction.


1994: Tihar Jail was reporting an unusually high number of incidents of sodomy in the

quarters. The ABVA requested for distribution of condoms in the prison to avoid spread of

sexually transmitted infections. But this was refused by then Inspector General of Prisons,

Kiran Bedi, as it would mean admitting to the “menace of homosexual relations” in Tihar.

Bedi instructed that all the inmates be tested for HIV and the ones testing positive be

segregated.


1994: The ABVA filed the first petition in the Delhi High Court, challenging the

constitutionality of Section 377. The refusal of several doctors at AIIMS and ICMR to treat

patients with AIDS was an important factor that led to the Public Interest Litigation (PIL), as

this refusal left several gay persons vulnerable.

1999: India’s first gay pride parade was held in Kolkata with only 15 attendees. It was called

the Calcutta Rainbow Pride.


2001: The PIL filed by ABVA was dismissed. In the same year, Naz Foundation, an NGO,

filed a PIL challenging the constitutional validity of Section 377. This was dismissed by the

Court twice.

2006: A Special Leave Petition (SLP) was filed by Naz Foundation before the Delhi High

Court. The petition was addressed to several medical and forensic science bodies, as well as

the police. Naz Foundation was backed by several NGOs and individuals.


2009: The High Court decided that Section 377 was unconstitutional and violative of the

fundamental right to equality, and life. This was challenged in the Supreme Court by an

astrologer, and later, the Court reversed the judgment. Homosexuality remained a criminal

offence.

2015: MP Shashi Tharoor introduced a private member’s Bill to decriminalise homosexuality

in India. However, the Lok Sabha voted against it.


June, 2016: Navtej Singh Johar, a renowned Bharatanatyam dancer, challenged the Section

with a writ petition before the Supreme Court.

September 6, 2018: In the judgment of Navtej Singh Johar & Others v. Union of India, the

5-judge Bench comprising of then Chief Justice of India Dipak Misra, Justices Rohinton Fali

Nariman, A.M. Khanwilkar, D.Y. Chandrachud, and Indu Malhotra decriminalised Section

377, calling the law “arbitrary in its very nature” and “irrational and indefensible”. The

judgment said that the LGBTQ+ community was entitled to the same rights as any ordinary

Citizen.

With the recent Justice Puttaswamy case which made the right to privacy a fundamental right under the Constitution, the Navtej Singh Johar judgment also included the rights of the LGBTQ+ community to be a part of the right to privacy. It also clarified that any act of

intercourse mentioned under Section 377 (except intercourse with an animal) must be consensual and free, completely voluntary in nature, devoid of any kind of coercion. Non-

consensual acts will still be governed by the Section.


The decriminalisation of Section 377 is the first step to lead up to greater independence and

autonomy for the queer community. The bigger challenge is to make public spaces safe for

the community and to integrate inclusive education in schools and other institutions. The

recent Madras High Court judgment on the same is a commendable example of how things

do not stop at mere decriminalisation. The inculcation of awareness among children about the LGBTQIA+ community at an early age can lead to greater understanding of the movement and help in creating responsible allies. Lastly, it is essential that individuals make efforts to understand the community, its background, and its diversity to be able to pave way for equality in India.