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One of our editors reflects on the landmark judgement of the Supreme Court, taking a significant step towards the vision of a more equal India and the events leading up to its culmination. 

06.09.18 is a historic date for Human Rights in the entire world. I use “world” instead of India because the 132.42 crore people of India are now freer. Section 377 of the Indian Penal Code was declared, “irrational, arbitrary and incomprehensible as it fetters the right to equality for LGBT community,” by CJI Dipak Misra on 06.09.2018. In the 493 pages of extensive judgement, The Chief Justice of India has raised the individual’s identity to the pedestal of divinity. “Constitutional morality”, the CJI has said, is not confined to the literal text of the Constitution; rather, it must seek to usher in a pluralistic and inclusive society. [1] The first few pages of the judgement speak volumes, “I am what I am”.

Introduced by the British Government in 1861, modeled on the Anti-sodomy law in Britain, Section 377 banned (loving the past tense) “carnal intercourse against the order of nature with any man, woman or animal” — which technically prohibits both homosexual and heterosexual anal and oral sex, but it is interpreted to refer to homosexual sex.

The law has often been used to threaten, blackmail, harass, and sexually assault homosexuals by extortionists and police alike. One common threat given by extortionists is the disclosure of the sexual orientation to the family. Often, the closeted victims did not file an FIR.

Section 377 law has been partially scrapped. The court said that “Intercourse with children, animals and bestiality” and intercourse that is non-consensual or with consent obtained by force will continue to be crimes.

The fight against the stigmatisation picked up in January 2018, when a writ petition challenging the constitutionality of Section 377 was filed by 20 LGBTQ students and alumni of IIT in the Supreme Court of India. The detailed hearing commenced on July 10 and went on for four days. On July 17, the Supreme Court reserved its judgement.

The Centre did not take a pronounced stance on Section 377. On July 10, the Supreme Court rejected the Centre’s pleadings to delay hearing on Section 377 as the Centre requested for additional time to file a response. On July 11, the Centre-left it to the wisdom of the Supreme Court to examine the constitutional validity of the penal provision which criminalises “consensual acts of adults in private”, saying this was the only question under section 377 of the IPC which needed to be decided by the constitution bench. [2]

The Bench, comprised of CJI, Justices F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra who were receptive to the pleas made by the counsel of the petitioners during the review in July. For instance, on the third day of the hearing, the Bench concurred that “once consensual gay sex is no longer criminalised, then related issues like social stigma and discrimination against the LGBTQ community would also go away.” Justice DY Chandrachud referred to Section 21(a) of the Mental Healthcare Act, said the Act prohibits discrimination on the grounds of sexual orientation and thus, “the Parliament itself now recognises the community,” he said.

The history of the fight against section 377 is a protracted one. It started when Naz Foundation among others filed PILs in July 2009 in Delhi High Court. The Delhi HC decriminalized homosexuality in July 2009. In December 2012, the SC found the judgement, “legally unsustainable” and overturned the High Court’s decision. After the SC’s judgement, NCBR decided to collect data on offences under Section 377. In 2016, five petitioners belonging to the LGBTQ community filed a petition challenging the constitutional validity of Section 377. In August 2017, the SC recognized the Right to Privacy and observed that “sexual orientation is an essential attribute to Right to Privacy.” The Right to Privacy gave constitutional validity to the scrapping of gay sex ban.

The UN welcomed SC’s decision on Section 377 and said, “Sexual orientation and gender expression form an integral part of an individual’s identity the world over, and violence, stigma and discrimination based on these attributes constitute an egregious violation of human rights.”

2018 seems to be a positive year for the LGBTQ community of Commonwealth nations- those nations that were formerly British colonies and have thus inherited anti-Sodomy laws. On Tuesday 17th April, Theresa May said that “I am all too aware that these laws were often put in place by my own country. They were wrong then, and they are wrong now. As the UK’s prime minister, I deeply regret both the fact that such laws were introduced, and the legacy of discrimination, violence and even death that persists today.” Reiterating UK’s support for reformation of anti-gay laws she said that, “And the UK stands ready to support any Commonwealth member wanting to reform outdated legislation that makes such discrimination possible.”

On April 13 this year, another Commonwealth Nation that inherited anti-gay laws from its colonial rule ruled homophobic laws unconstitutional. The Caribbean nation of Trinidad and Tobago declared sections of the Sexual Offences Act unconstitutional, which may soon lead to decriminalisation of gay sex.

However, there are reservations about how far will the judgement change Indian’s attitude towards the LGBTQ community. Markandey Katju, a retired judge at the SC, for instance, expressed his concern if this judgement will reduce the social prejudice and discrimination faced by the LGBTQ community. It is true that India needs laws to prevent violence against the LGBTQ community, ensure workplace equality, and legalise gay marriage and adoption.

With the awareness that there is a long fight left to gain complete equality and dignity of life for the LGBTQ community, India celebrates its first victory over homophobia with exhilaration.


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