A brief history of the quest for LGBTQ rights and same-sex marriage in India

Today, India's Supreme Court delivered a highly-anticipated verdict on the legalisation of same-sex marriage. The panel overseeing the verdict, led by Justice DY Chandrachud, said that individuals belonging to the LGBTQ+ community have "no fundamental right to marry" and that they do not hold the power to "pass a law."

The SC left it to the Indian Parliament to decide on necessary amendments to the 1954 Special Marriages Act to accommodate non-heterosexual marriages in India.

This decision follows the historic 2018 Supreme Court ruling that abolished a colonial-era ban on homosexual activities.

The petitioners argued that LGBT couples in India should be granted the same rights as heterosexual couples, including recognition as 'spouses' in financial, insurance, medical, inheritance, succession, adoption, and surrogacy matters.

A glimpse into history

Three decades ago, India, which now acknowledges same-sex relationships, once severely persecuted openly gay individuals. Revealing one's sexual orientation back then could endanger one's employment or even life in Indian society.

On September 6, 2018, a unanimous decision by a five-judge bench led to the removal of Section 377 from the Indian Penal Code (IPC), thereby legalizing consensual same-sex relationships.

Section 377 of the IPC represented India's initial legislation on homosexuality. This law, in effect from 1861 to 2018, stipulated that being queer in India was punishable by up to 10 years in jail for engaging in “carnal intercourse against the order of nature."

2001- The beginning

• For over six decades post-India's independence, Section 377 endured without significant opposition. 
• Change began in 2001 when the Naz Foundation, an NGO supporting HIV+ patients and advocating for sexual health, launched a Public Interest Litigation (PIL) challenging the provision, claiming it violated the constitutional right to be free from discrimination in India.

2009 - The first light 

• In 2009, the Delhi High Court, in the Naz Foundation vs. NCT of Delhi case, ruled that Section 377, which made same-sex relationships illegal, was against the constitution. This decision made homosexuality legal in India for the first time.
• The High Court declared that penalizing individuals for acts linked to homosexuality is in direct violation of the country's constitution. The constitution bestows its citizens with the rights to privacy and personal freedom (Article 21), guarantees fair treatment (Article 14), and prohibits discrimination (Article 15).

2013 - Freedom vs Politics

• This was a major move for sexual freedom in India, but it didn't last long without its own fair share of problems.
• In 2013, the Supreme Court reversed the Delhi High Court's decision to decriminalize homosexuality, stating it required legislative action. 
• This led to nationwide protests, with some political parties pledging to decriminalize homosexuality in the 2014 elections.

2018 - A milestone year

• In 2018, the Supreme Court, led by Chief Justice Dipak Misra, made a historic decision in response to a petition filed by Indian choreographer Navtej Singh Johar and 11 others. They were challenging the constitutionality of Section 377.
• On September 6, 2018, the Supreme Court changed the rules of Section 377 to allow consensual same-sex relationships.