“I am what I am, so take me as I am” – Johann Wolfgang von Goethe
“No one can escape from their individuality.” – Arthur Schopenhauer
These were the opening remarks from the Indian Supreme Court’s landmark ruling on September 6, 2018, declaring section 377 of India’s Penal Code unconstitutional. For over 158 years, this law had been used to criminalise consensual relations between gay, lesbian, bisexual and transgender (“LGBT”) people. In the words of Chief Justice Dipak Misra, section 377 had relegated the LGBT community “to societal pariah and dereliction…” subjecting them to “social prejudice, disdain and… the shame of being their very natural selves”.
By referring to the pain and suffering that the law had caused to the LGBT community over its 158 years of existence, the Court acknowledged that the law had been used as “a weapon in the hands of the majority to seclude, exploit and harass the LGBT community” shrouding “the lives of the LGBT community in criminality and constant fear…” and marring “their joy of life”. Section 377 was therefore declared to be “irrational, indefensible and manifestly arbitrary” and thereby, unconstitutional.
SC’s judgment by a five-judge bench (all of whom concurred) overruled the 2013 judgment of the same court that re-criminalised homosexuality following the decriminalisation of the 2009 Delhi High Court ruling in the Naz Foundation case. In the 2013 judgment, the two-judge bench of the Supreme Court held that section 377 was not unconstitutional. It declared that LGBT persons constitute only a “minuscule fraction” of India’s population and the mere fact that the law had been used to perpetrate harassment, blackmail, and torture against persons belonging to the LGBT community, could not be grounds for challenging the legislation.
In overruling the 2013 judgment, Justice Indu Malhotra cited the fallacy of that decision, “the mere fact that…LGBT persons constitute a “minuscule fraction” of the country’s population cannot be a ground to deprive them of their Fundamental Rights… Even though the LGBT [community] constitute a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights…Fundamental Rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority.”
The judgment is historic, not only for the people of India but the world. Since the empire-wide imposition of its penal code by the United Kingdom during colonial rule, millions of LGBT people have lived their lives shrouded in fear – the fear of persecution, the fear of reprisal and most of all, the fear of just being themselves. The judgment has lifted that shroud. It makes India and the world a freer and, for that, a better place. It also gives hope to the LGBT community in the nearly 70 countries across the world that continue to criminalise them and continue to force them to live their lives in fear.
In her closing remarks, Justice Indu Malhotra said, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”.
As the fight for decriminalisation and the fundamental rights of LGBT people continues across the world, we hope that Chief Justice Misra’s reminder “that identity and sexual orientation cannot be silenced by oppression” will continue to catalyse and inspire movements against oppressive and unjust laws.
We at iProbono will continue to be there, to provide you with the legal support needed for that change. If you have any questions or ideas, please send them to us at contact@i-probono.com.
iProbono hopes to empower vulnerable individuals by sharing content that raises awareness around legislation, case law and constitutional provisions available to them. The article has been written by Aritha Wickramasinghe, iProbono’s Director of Equality Law in Sri Lanka.
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