‘Against the order of nature’.
But who decides what is natural or unnatural? The answer should not be what the majority of people think. It should be what is rational. So, on the day Section 377 of the Indian Penal Code (IPC) was read down to decriminalise homosexuality, while giving the verdict, what Chief Justice of India Dipak Mishra said is important. He asserted that “Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudices, embrace inclusion and ensure equal rights.”
There was hardly any news that could give us any relief these days. But then this historic judgment arrived and gave essence to the term ‘liberal India’.
We had been free for 71 years now, but still, some of us were not. Because the society we live in is majoritarian and irrational. So many people do not find ‘non-consensual sex’ (rape or marital rape) to be a mental illness, but they have a problem with consenting adults, especially of the same gender. We must acknowledge Justice Indu Malhotra’s call for a national apology to the LGBTQ community.
Everyone is happy because of this judgement except certain religious ‘mentors’ who seem a little hurt, as they might lose some of their customers now. Frankly, nobody wants to leave their real identity. After all, “hum jo hain so hain” (we are what we are) is a precious attitude. But I often wonder how were they planning to cure this so-called disease? And what inspires them to claim they can, and that too with so much confidence?
157 years of hate is a long time, and it was a huge struggle for the community. In India, the movement to repeal Section 377 was initiated by Aids Bhedbhav Virodhi Andolan in 1991, after the historic publication of “Less than Gay: A Citizen’s Report.”
In 2001, the NAZ Foundation filed a Public Interest Litigation for the same in the Delhi High Court.
In 2003, the High Court refused to consider the petition. And when the NAZ Foundation appealed against the High Court’s decision, to the Supreme Court, the latter sent back the petition.
In 2008, at the time of the hearing, there was uncertainty between the home and health ministries of the government. Later, July 2, 2009, the high court overturned the then 149-year-old section, and legalised consensual sex between same-sex adults.
But on December 11, 2013, the Supreme Court reinstated this judgment. Many of our politicians supported it. Sadly, the ruling party leaders also endorsed the judgement, except for a few such as MPs Piyush Goyal, Arun Jaitley and Shaina NC. It is shocking that all the religious leaders came together to support this verdict too like it was some spiritual decision and their beliefs were reinforced by it. I wonder why sex hurts them all so much and how do they think they came into this world exactly? Almost all Congress leaders spoke on how the judgment was worth considering (though that they had not promptly contributed even a dry stand meant something in the regressive scenario). For them, it became an agenda for the 2014 general elections. Even Sonia Gandhi asked Parliament to put an end to Section 377. Brinda Karat, Shivanand Tiwari, Derek O’ Brien—all representatives from different parties—and Aam Aadami Party also expressed their disappointment with the judgment. Then, on December 22, 2013, the Central government filed a review petition against this verdict. But on January 28, 2014, the Supreme Court dismissed the petitions filed by the Centre, NAZ foundation, and many others. It was on December 18, 2015, that MP Shashi Tharoor introduced a private member bill to replace section 377 in the IPC and decriminalise consensual same-sex relations. But the bill was defeated in the first reading (what else one could expect in 2015?). In March 2016, he reintroduced the private bill, but it was voted down again.
Now, finally, in 2018, five judges—Rohinton Fali Nariman, A. M. Khanwilkar, D. Y. Chandrachud, Indu Malhotra and CJI Dipak Mishra—gave a unanimous verdict.
Nariman stated, “Homosexuality cannot be regarded as a mental disorder, and homosexuals have the right to live with dignity.”
A. M. Khanwilkar said, “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation. And Decriminalisation is but the first step; the Constitution envisages much more.”
Indu Malhotra said, “History owes an apology to those who have been persecuted and socially ostracised because of section 377.”
And Justice Dipak Mishra remarked that “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression.”
Activist Bindu Madhav Khare said he was afraid that this moment would be scattered. As initially, all were fighting for the whole LGBTQ community. One community can’t be separated from another. It is necessary to be united, as important issues like adoption, property rights and more have not been sorted out yet. I read a few stories of how parents are happy for their children from the community. Even if society will take time to accept the truth, the law is on the side of justice now. And it is a positive side. It’s always best to live our life on our terms. The society will always find faults with you so, it’s better to follow your heart and not to think about them.
Law and order are not going to punish queer people for being themselves anymore, so it is time to celebrate this hard-earned freedom, and never forget these words from Justice Misra—“Not to express is equivalent to death.” So, express yourself, love yourself, love the person you want to, and make your life simpler.
The world needs to accept love and liberty. India has recognised it. The state of Jammu and Kashmir is still away from this judgment, as the IPC does not automatically extend to it, and it has its own Constitution, and Ranbir Penal Code (RPC). But this judgment is a ray of hope for activists. An advocate for LGBTQ rights, Dr. Bund is fighting in J&K for the rights of this community. Leaders like Mehbooba Mufti and Omar Abdullah, who are always up to date with social media, have not uttered a word on this issue. So, in J&K, homosexuality is as sensitive as the state itself.
Now, provisions of Section 377 will only continue to govern non-consensual sexual acts against adults, all acts of intercourse against minors, and acts of bestiality. At last, we have come a long way, but we have to go further, so this is truly historic judgment becomes accessible to every single person belonging to this community.
Kudos to the judiciary!