section 377


The possibility of a Gay Judge being appointed to the Delhi High Court is definitely a step forward but what does this mean in the larger context of legalization of civil union of same-sex marriages?

Saurabh Kirpal is still slated to be the first openly gay judge of the Delhi High Court. In a more perfect world, only his qualifications to be a judge would matter and be of any consequence to the nomination board making the decision and the larger body of jurisprudence Kirpal would be serving upon his nomination. His identity as a cis-gendered gay man should be incidental, something to be neither extraneously celebrated nor held against him. Yet it’s hard to deny the suspicion that his nomination, pending 2017, fell victim to his sexuality. It was deferred every year. The government denied the red flags had anything to do with his sexual orientation, and argued that the nomination was denied purely on grounds of security concerns which rose out of the Swiss nationality of Kirpa’s partner Nicolas Germain Bachmann. The concern, which is deeply ironic, also points out two major fallacies in the stance taken by the government.

The concern of a foreign national spouse has never been a cause of concern in the case of Dr. S. Jaishankar whose wife Kyoto Jaishankar is of Japanese nationality. Furthermore the acknowledgement of a national threat being posed by Kirpal’s partner is an inadvertent admission of the existence of a same-sex couples in the higher political echelons of the Indian bureaucracy – something that the government has otherwise been blind to in general as far as the larger public is concerned. It points out the hypocrisy of the stance which acknowledgement same-sex partnership only on grounds of security concerns but denied the possibility of the same when citizens use its existence as a legitimate ground to demand recognition of civil unions between same-sex partners.

In the month of October the Union has told the Court its stance on same-sex marriages by saying that it went against the foundational objective of marital unions – reproduction, which could only be possible if there was a marriage between a biological man and a woman. In the end of November, the same-sex marriage hearings came up before the Delhi High Court yet again and was dimsissed by the court. The petition seeking to legalise the civil union of same-sex partners had sought the same under the Hindu Marriage act, Special Marriage Act and the Foreign Marriage Act. The court argued saying that the same could not be granted under the Hindu marriage Act since same-sex partnership went against the precincts of Hinduism and a secualr state intervention in the issue of religion in a Hindu-majority population state would only be detrimental.

Some observers say India is lucky that it already has a Special Marriages Act that can be used to bypass issues of religion and could be a way to allow same-sex civil marriage. But the government has already made clear that just because homosexual sex was decriminalised it did not mean homosexuality and its anciliiary institutions were being legitimised, thereby keeping recognition of same-sex marraige off the table as far as the Centre was concerned. This brings to light a larger debate concerning the existence of freedoms for citizens without the right to act upon it. Currently owing to the historic decriminalisation of Section 377, homosexuality can no longer be punished by law. However the carrying out of any form of love, if desirous to be resultant in marriage, will not be recognised by the State on grounds of it harming the social fabric of the community at large. Furthermore, the non-existence of acknowledgement of civil unions denies same-sex partners rights to tools of public assistance such as insurance and property rights as well.

But as the case of Kirpal proves, these lines are trickier to navigate than we ever imagine. It was inevitable that the ball would not stop rolling at decriminalisation just because the government drew a line in the sand. Gay people cannot come out of the shadows yet leave their relationships in the closet. One could debate about whether marriage should be the top priority for the movement and whether the whole idea of trying benefits to marriage is outdated but it’s only natural that LGBTQ popeople would want the same rights as everyone else. In fact various trans-rights have criticised the decision to legalise marriage in an atmosphere where the discriminatory Trans Bill still holds sway over the populace as emblematic of the mainstream ueer movements repeated erasure of gender minorities and trans bodies in favour of cis-gendered, upper-class queer folks. Their primary critique being directed at the lawyer duo Arundhati Katju and her partner who have in many ways become the face of the liberation movement at large. While their advocacy intentions are never questioned their prominence as the face of the movement is repeatedly brought to question as they embody the centralisation of cis-gender upper class domination of queer discourses.

Currently the debate around marriage in India is wrapped around symbols and rituals. Does Dabur get to give a lesbian twist to Karva Chauth in an advertisement for skin bleaching products which have been at the receiving end of criticism for more than a year now following moves by brands like Fair and Lovely in changing well established marketing strategies? Can fashion designer Sabyasachi pair a mangalsutra, an ornament that is situated in a historicity of patriarchy and misogyny, with low necklines and suggestive intimacy following being heavily criticised for selling Indian artisanship to western corporate setups? What truly are the politics of a brand like Tanishq showing a Muslim family organising a traditional Hindu baby shower for their Hindu daughter-in-law in a country where the marketing head of the same company, which stands as one of the most reputed in its field, gets death threats on grounds of promoting love-jihaad?

The debate around such questions and scenarios can only be contemplated if one realises that the construction of marriage as a social document is not reductive to mere symbols – objective and metaphorical. Marriage is not only about bindis, mangalsutras and Karva Chauth but more about social acceptance and respectability and accessibility to public resources. Although gay weddings are the rage of the hour as clearly proven by the Telengana marriage reception, basic rights are still denied to same-sex partners. An event of heartbreaking magnitude can be traced back to the pandemic when an NRI married to an American same-sex partner was denied entry into India, although the same rule was relaxed for heterosexual couples of the same order.

As Sandip Ray puts succinctly in a Times Of India editorial with regard to the same,

In the end progress is about these boring things. The first openly gay judge on the Delhi High Court makes for a good news story and will be a point of inspiration for many. It is something to be welcomed but what LGBTQ Indians ultimately need are those joint bank accounts, the health insurance plans, joint custody of children and hospital visitation rights. Just like every other couple.”


Read Also
Section 377 – Has anything changed?
A Post-377 World: Is this really Freedom?


Anwesh Banerjee

[email protected]

These are tumultuous times for the Supreme Court (SC). Despite this, the past year has been dramatically successful for India’s Liberal Majority. Liberalism here must not be confused with ‘outright left wing progression’ or glorification of ‘western ideals’, but the plain and simple primacy of the Individual over the Collective.

The structure of the Indian Constitution was primarily built upon the ideals of its British counterpart. Some clauses of our constitution date back to the late 19th century, and this is clearly evident in the dogmatic, invasive and almost oppressive nature of some laws that govern this 21st century democracy.
In the past year, the Judiciary of India has ventured to instill the public’s dwindling faith in democratic ideals, and some unprecendted judgments have been witnessed. The most celebrated of these was that of August 24, 2017, where a 9 Judge Constitutional Bench unanimously ruled that the Right To Privacy is a Fundamental Right. 2017 witnessed government and private institutions mandating Aadhar Cards for basic functionality, which caused public distress over the invasive nature of UIDAI (Unique Identification Authority of India), its collection of biometric data and its transparency and security. This judgement came as sigh of relief to millions of Indians, albeit temporarily. In September 2018, the Supreme Court upheld the constitutional validity of the Aadhaar scheme and Act, with conditions. A 4:1 majority of a five Judge Constitutional bench concurred that Aadhar “serves a bigger public interest”. Even though the scope of influence of UIDAI has been drastically decreased, many civil rights activists, rallying behind the sole dissentee Justice D.Y. Chandrachud, deemed this ruling as an illusion of liberty; because Aadhar still remains mandatory for Pan Card and Ration Card registrations, that are essential for one to function in Indian Society.
Decreasing gender bias and discrimination were prioritized on the agenda of the SC under Dipak Misra’s Chief Justiceship, as was discernable in judgements pertaining to Triple Talaq, adultry and age of consent for marital sexual intercourse. The Supreme Court of India declared the practice of Triple Talaq as unconstitutional by a 3:2 majority in a 5 Judge Constitutional Bench.The court said the practice is  ‘unconstitutional’, ‘arbitrary’ and ‘not part of Islam. “Finally I feel free today. I have the order that will liberate many Muslim women,” said Shayara Bano, the petitioner of Shayara Bano Vs Union of India and Others. Amid outrage among a small fraction of India’s muslim community, that tried to justify this patriarchal practice under the veil of ‘religion’ , the court upheld its commitment to women’s rights with grace. Same was the case when a two Judge Bench of Supreme Court held that the age of consent for sexual intercourse was increased to 18 from 15 in cases of married couples. This judgement was an amendment to Section 375 of the Indian Penal Code. Last week, a five Judge Constitutional Bench ruled unanimously that Section 497, a 158-year-old law, that criminalised consensual sexual relations between a man and a married woman without the consent of her husband, was unconstitutional. “Adultery can be grounds for civil issues including dissolution of marriage but it cannot be a criminal offence … adultery might not be the cause of an unhappy marriage, it could be the result of an unhappy marriage,” said Chief Justice Misra while reading out the verdict.
Enshrining another insegregable facet of individual liberty, article 377 of the Indian Constituion, that criminalized homosexuality, was revoked. A 5 Judge Constitutional bench unanimously ruled that India’s LGBTQ community has the same sexual rights as heterosexual in India. ‘The right to live with dignity has been recognized. Sexual orientation is a natural phenomenon determined by biology and science. Any discrimination on this basis is unconstitutional,’ said Dipak Misra.
The court also attempted to safeguard individual identity from political propaganda and sensationalist manipulation. It held that seeking votes in the name of religion, caste or community amounted to corrupt practice and consequentially, candidature or office of an elected representative may stand void.
Our society still has a long way to go, constitutional enshrinement doesn’t guarantee proper implementation, and sexism and homophobia continue to influence a large part of Indian populations. Yet, amid all this, the Supreme Court has delivered judgements with profound implications for the Indian society.


Feature Image credits: Deccan Herald
Nikita Bhatia
[email protected]

Since 1978, the pride flag has undergone many changes in dimensions and hues but its message is still preserved as it flutters with the winds of change. The original rainbow pride flag had eight colours but has now adopted six, not seven, colors from the rainbow as its own. Accommodating different colours from the vibgyor spectrum only strengthens the status of the flag as an epitome of equality.

Image Credits: Adithya Khanna
Image Credits: Adithya Khanna

Violet is a shade which stands for the spirit. The movement wouldn’t have achieved success without an undying spirit of courage and the persistence to move forward.

Image Credits: Ayush Chauhan
Image Credits: Ayush Chauhan

Blue usually has mellow undertones but in the flag, the colour represents a sense of harmony and peace.

Image Credits: Ayush Chauhan
Image Credits: Ayush Chauhan

Green represents Nature. Mother Nature has created everyone with their unique characteristics and differences and accepting this diversity is exactly what the Pride movement stands for.

Image Credits: Adithya Khanna
Image Credits: Adithya Khanna

Yellow shows that a new dawn, a dawn of change would arrive as the sun rises. It represents sunlight, and in its truest sense, it encourages you to stand out instead of living in the shadows.

Image Credits: Vaibhav Tekchandani
Image Credits: Vaibhav Tekchandani

Orange is the shade of healing. Psychologists usually deem orange as one of the major colours associated with positivity.

Image Credits: Vaibhav Tekchandani
Image Credits: Vaibhav Tekchandani

Red is essentially seen as the shade of life. Additionally, it is a common fact that red represents rage, which can be interpreted as indignance against the system.


Shaurya Singh Thapa | [email protected]

5 years after it’s initial verdict, a three-judge bench of The Supreme Court of India has decided to review the criminalisation of consensual homosexual sex under Section 377 of the Indian Penal Code (IPC). The said law was created by the British during the colonial era and holds that only penile-vaginal sex was not “against the order of nature”. Under today’s order, the court has decided to refer the matter to a larger bench that will re-evaluate the constitutional validity of Section 377.

In 2013, the apex court reversed the Delhi High Court’s 2009 judgement, which held that criminalising gay sex, “does not suffer from the vice of unconstitutionality”. Under the judgement, the court gave the amendment and repealing powers to the legislature, as it deemed fit. Last year, Congress M.P. Shashi Tharoor introduced the Indian Penal Code (Amendment) Bill seeking changes in Section 377 of IPC but the bill failed to gain a majority in the Lok Sabha.

The recent order comes in response to a writ petition hearing filed by five members of the lesbian, gay, bisexual, transgender (LGBT) community. In the order, the court said, “Determination of the order of nature is not a constant phenomenon. Societal morality also changes from age to age. Law copes with life and accordingly, change takes place.” The court also noted that while choice can’t be allowed to cross the boundaries of law, “The confines of law can’t trample or curtail the inherent right embedded in an individual under Article 21, the right to life and liberty.”

The “section of people who exercise their choice should never remain in a state of fear”, the Supreme Court said in reference to the five petitioners and the LGBT community at large. While throughout the existence of the law, not more than 200 arrests have been made, the police use it to harass and threaten the members of the community.

The celebrated order provides hope and hinges in favour of decriminalisation of consensual gay sex. Akkai, an LGBT activist said “we need to welcome it. We still have hope from Indian judiciary. We are living in the 21st century. All politicians & political parties must break their silence & support individual’s sexuality”

Moreover, the recent judgement on the fundamental right to privacy was also taken into account by the court. The judgement was in favour of respecting the freedom of the individual to their sexual orientation. While the judgement was welcomed by the LGBT community, Gautam Bhan, an LGBT activist, entailed that, “We could have gone to court on privacy grounds. But we didn’t because that is not acceptable. It is just tolerance that favours the elites who can afford to conduct their lives behind closed doors. The judgment is much more than that. It has spoken of privacy with dignity and equality. It reaffirms the Delhi High Court judgment in speaking of sexuality within the framework of constitutionality.”


Feature Image Credits: Daily Mail

Varoon Tuteja
[email protected]

The Supreme Court of India, which is considered the ‘final guardian and interpreter’ of the Indian Constitution sent shock waves across the world as it overturned the judgement of the Delhi High Court(2009) which declared Section 377 unconstitutional. The SC verdict infringes the ‘right to life and personal liberty’ that the Constitution of India promises to each and every citizen irrespective of their place of birth, caste, creed, religion, race or sex.

The SC’s move has moved all spheres of society, Delhi University being no exception. Enactus Ramjas, in collaboration with NGO ‘NAZ Foundation’ plans to start an online petition to restore the rights of personal liberty to the LGBT community. They also wish to forward the demand for withdrawal of the judgement criminalising sexual intercourse between same sex people.

In order to muster maximum support from the youth of DU, a Facebook page in name of ‘E-queer-LIBRIUM’ has been launched that works towards sensitisation towards the gay community. The group provides a platform to reflect the voice of discriminated and reach out to the concerned authorities. Not only is Enactus Ramjas supporting the LGBT community in their legal battle for equality and justice, but also the members have started an innovative plan called – ‘TransCreations’ where the  transgenders are given an opportunity to work in the jewellery designing project of Enactus Ramjas. The jewellery designed is then sold online, in college fests and in select jewellery shops as well. “The workers are thus guaranteed an alternate respectable income, which is a small step towards making them socially acceptable, independent and strong.” said Robin Kumar, President, Enactus Ramjas.

Thus, while the fate of this minority group hangs on a loose thread, it is important for us to observe solidarity and create an atmosphere conducive to each and every member of the society.

Relevant links :

Official FB Page of ‘E-queer-LIBRIUM’ – https://www.facebook.com/equeelibrium

Official FB Page of the Trans’Creations’ Programme-https://www.facebook.com/Transcreations?fref=ts

On Friday, 9th January, the DU Queer Collective organised a non-violent protest against the upholding of Section 377 of the Indian Penal Code outside the Faculty of Arts at the University Campus.  Demands ranged from putting a stop to the increasing number of security and police personnel on campus, to the onslaught of gender studies programmes and graduate and undergraduate levels, especially with the coming of the FYUP. The protest also aimed to voice united concern on issues of discrimination on the basis of gender identity and sexuality that exists at various levels of the university.

Section 377, that deems consensual sex between two adults of the same gender as unconstitutional was reinforced and gay sex was criminalised on 11th December, 2013.

Some brilliantly nuanced arguments were made by eminent speakers like Nivedita Menon, Kavita Krishnan and Apoorv Anand as the small, but spirited gathering cheered them on.

Image Credit: Pallab Deb for DU Beat