The Supreme Court of India legalised same-sex relations by partially decriminalising Section 377 of the Indian Penal Code on September 6, 2018. The five-judge constitutional bench in a unanimous judgment noted that the colonial law that bans consensual sex between same-sex individuals was ‘irrational, indefensible and manifestly arbitrary’. Chief Justice Of India Dipak Misra-led bench comprised of Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
Overruling its own 2013 judgment where SC struck down Delhi High Court’s decision to decriminalise Section 377, the Apex court on Thursday pointed out that social morality that fails to accept homosexuality cannot be allowed to overpower constitutional morality that gives equal rights to everyone.
“In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society. If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher,” noted the 493-page judgment of CJI Dipak Mira and A M Khanwilkar.
The lawyers who have been at the forefront of this battle to correct a historical error were jubilant about the verdict. Speaking to Youth Ki Awaaz, they exclaimed that ‘judiciary has lived up to its reputation of safeguarding the rights of every individual in the country irrespective of their caste, creed, religion, or sexual orientation’.
Historic Day When An Error Was Corrected
It’s been a long a fight for the LGBTQ+ community to get what they had been promised in the constitution but were denied due to Section 377 of the IPC that stems from archaic British law that penalises ‘sexual activities against the order of nature’. Thursday’s judgment will help many homosexuals and transsexuals to come out without the fear of being deemed as ‘criminals’.
Former Attorney General of India and counsel for classical dancer Navtej Singh Johar in the case said: “Firstly, we must thank CJI to hear this case on the priority basis and getting the justice promptly. Secondly, it’s a great day in our history as a Victorian law that has caused suffering to the LGBTQ+ community has been scrapped. SC has proved that India is a progressive and liberal country that is open to same sex relationships and is committed to safeguarding rights of every individual. The community, which is so minuscule in the country, is thrilled and celebrating because they don’t have to be in closets anymore. They won’t be regarded as criminals anymore.”
A Human Rights Consultant for the UN Menaka Guruswamy, who was appearing for IIT students, graduates and alumni, said, “The court in its decision has extended rights to equality, dignity, and liberty to the LGBTQ+ community. It’s a big moment for India has a whole because the constitution has reaffirmed constitutional morality over social morality. This has great relevance to the entire country.”
Madras High Court advocate Arvind Datar, who was appearing for an openly gay hotelier Keshav Suri, head of The Lalit group of hotels, noted “It’s a great victory for the community. Earlier, they were under the fear that they could be arrested any day over their sexual orientation. So, that fear has been uplifted. Secondly, it’s a great expansion of Article 21 where the right to choose a partner, whether of the same sex or opposite sex, has been reaffirmed.”
A founding member of Bengaluru-based Centre for Law and Policy Research, Jayna Kothari appeared for noted trans rights activist Akkai Padmashali. “From LGBT community to lawyers and activists, everyone is very happy and thrilled with the verdict. Section 377 was a big hurdle in the way of the LGBTQ+ community to achieve their rights and social and financial inclusion. Today was a major development, and now we have to look forward to changing perspectives,” noted Kothari.
Things Changed From 2013 Onwards
In 2009, Delhi HC upheld that Section 377 violates the fundamental rights. The decision faced strong opposition from various religious groups who later challenged the court’s judgment in the Apex court. Consequently, in 2013 SC struck down Delhi HC’s order and demotivated the community and those fighting for their rights. Five years later, the top court of the country reversed its previous judgment ushering the country into the new era of freedom and liberty.
“The 2013 judgment was a bad one. The court on the basis of majoritarian view and societal morality turned down Delhi HC’s decision of decriminalising Section 377. But over the years there have been many positive developments that culminated in today’s progressive verdict. NALSA 2014 judgment where the court declared transgender people to be a ‘third gender’ followed by the Right to Privacy verdict in 2017 were encouraging developments. Also, over the years, there has been good momentum on demand for LGBTQ+ rights. So, many things evolved in the past few years,” pointed out Rohatgi.
“In the last five years, the issue of LGBTQ+ rights have been raised very strongly. Especially after 2013 SC’s decision. Earlier, there wasn’t enough social awareness and society also gradually became a little more open to the community and recognised LGBT rights. Also, with the positive verdicts in NALSA and Right to Privacy, the court also has moved to a more liberal position,” noted Kothari.
“Many things changed from 2013 judgment. The first writ petition was filed in 2016, and the case was no longer on Public Interest Litigation. LGBT people came to court and argued their sufferings. That had a great impact,” said Guruswamy.
Way Forward
The lawyers unanimously asserted that while Thursday’s verdict was significant development towards ascertaining the rights of LGBTQ+ community; a lot has to be done.
“Judiciary has played it role by scrapping the archaic law. It will have a great impact on the inclusion of the LGBTQ+ community. The perspectives have to be changed, and that will take some time. But, the foundation has been laid today,” commented Rohatgi.
“Mindsets of people have to change, and it’s not going to happen overnight. Years of prejudices have to be changed, and changing that is a gradual process. Even in the US, after the court legalised consensual same-sex relationships, the society took years to mould their mindsets. The good thing is constitution has reaffirmed the rights of the community to choose their partner and not be discriminated on the basis of their sexual orientation,” pointed out Datar.
According to Kothari, “This is a major victory, and now the overall perspectives have to change. I believe we need an all-encompassing equality law that ensures the participation of LGBTQ+ community in employment, education, and other public spaces.”