Whenever the question arises about the Indian Constitution, justice brings the judiciary in the middle and removes the question mark. The historic judgement taken by Indian Supreme Court, on September 6, to decriminalise homosexuality under Section 377 of the Indian Penal code, an archaic British law of 1861 which criminalises sexual activities ‘against the order of nature’.
The screen shift from the 2009 judgement of Delhi High Court, to 2013 judgement by the supreme authority was almost a curse on LGBTQ community. ‘The Man’ (read: Great Britain) who planted a seed in another’s garden had cut down a giant tree from their own territory in 1967, decriminalising homosexuality.
The sexual orientation of an individual is natural and discrimination on its basis is a violation of freedom of expression, said Supreme Court. One of the judges from the bench noted that homosexuality cannot be degraded as a mental disorder, and that queer people have the right to live with dignity.
Same sex marriage has been legalised in 25 countries across the world and many more are standing in queue. According to the recent report of council on foreign relations “wherever you see restriction on individuals in term of speech expression or freedom of assembly you see a crackdown of LGBT right,” says Julie Dorf, senior advisor for the Council for the Global equality of Washington. This is a group which stands up for the LGBT community’s rights in the United State. In this first world country queer people are given equal status at least, but, in a patriarchal society such as India’s, it is a hard truth to digest certain people’s right to existence is ‘not by default’, because of their orientation. It is very true that society disappoints this community in every stage of life, or, in other words we might say that liquid modernity started from stereotyping.
On August 22, 2017, the Indian Supreme Court abolished the brutal and rotten Triple Talaq system practiced within many Muslim communities in India. But in reality, it is still practiced by marginalised groups across the country. Likewise, it’s time for privileged groups to remove their so-called ‘high profile’ spectacles, regarding developments in society, and look at the LGBTQ community in the different manner. Else, they will continue to prove their inhumanity. It is very rightly said by Justice Indu Malhotra, who was among the five member Constitutional bench in this case, that “History owes an apology to LGBT community for a ostracisation and discrimination.”
The Chief Justice of India, Dipak Misra, has done his job. Now it’s our turn to fulfill our obligation and give evidence of our being human. It will take a lot of time to change negative stereotypes and a discriminatory mentality that flourishes in the corridors of our society. But where there was frustration and disappointment, and questions were raised about the judiciary, the Constitution once again won during this difficult period.