It’s been a long journey. And, the sheer perseverance of ‘our freedom fighters’ – Yes, I’d call them freedom fighters for we’re been chained even we’re born in a free India – has led to the historical judgment by the Supreme Court of India which has read down Section 377.
The draconian law was created in the British Raj and it was actually decriminalised in 2009 but it was re-criminalised in the year 2013. And today, the SC has decriminalised homosexuality and rejected some parts of Section 377. However, it was the duty of the government to step in to protect the fundamental rights of their citizens but they shrugged off the matter saying, “It is left to the mettle and wisdom of the court to decide.” I’m glad that the honourable court took the statement to heart and demonstrated that wisdom which was expected of them.
There was a ray of hope when Justice Indu Malhotra shared her opinion about homosexuality in July this year:
“It is not human beings alone who indulge in homosexual acts, many animals also show homosexual behaviour; it is not an aberration but a variation.”
And today, statements like “LGBT community has same rights as that of any ordinary citizen,” and “Majoritarian opinions cannot dictate rights,” from today’s constitutional bench is an extremely welcoming move. And, in these statements, CJI Dipak Misra has rightly reflected the striking differences in which the community was viewed as opposed to heterosexual people: a non-citizen, a foreign idea, and an abnormal behaviour.
What were the demands?
The LGBTQIA+ community has fought for their rights for a long time and their relentless struggle has resulted in the striking down of the 158-year-old, Section 377. Here is a list of demands which were sought from the Government of India:
1. Section 377 should be read down. The law is archaic, and with changing times, the constitution should be amended like it always has been. It’s a living document, hence, it is necessary to make some changes to it as well so that each of the citizens of this country enjoys the rights offered in a free democracy. And, it was demanded that the section should be removed from our Constitution.
2. Homosexuality should be decriminalised. Consensual sex between same-sex individuals was (it feels so good to write it in past tense) a criminal offence. Love is love. Period. No one should command us whom to love. It’s natural to love anyone – be it of the same or other genders.
3. Homosexual marriages should be legalised. Two individuals of the same sex should be allowed to marry and the Union of India should recognise this marriage. There should be a legal affiliation of the same – bills of property etc. should be amended accordingly.
4. Equal rights to all, irrespective of gender identity sexual orientation.
What has been granted?
All of us should be mindful that our rights have not been granted in toto. Only a part of the law has been struck down and that is only the ‘decriminalisation of homosexuality’. We’ve won a part of the battle. Not the whole. But we’re empowered to fight it more fiercely from here on. And, without any hesitation we should celebrate this – it’s no less an achievement. But here are a few challenges we should recognise, acknowledge, and address:
1. Workplace Discrimination: There’s no law which condemns discrimination which the queer (an umbrella term) community faces across the country – be it working professionals in the MNCs, or people working in smaller organisations or NGOs. They’re not safe, are often harassed, and are offered unequal opportunities.
2. Recognition of non-heterosexual marriages: The State should recognise the union or alliance of two non-heterosexual people.
3. Amendment in pro-heterosexual relationship laws: Commensurate with the identification of marriage of non-heterosexual people, there should be changes in all the laws – like property rights of individuals, an amendment in divorce laws etc.
4. Education: There is a need to educate our children about gender, sex, and sexual orientation. And this topic should be included in all the textbooks. There should be a note which shall be circulated in all the educational institutes by the Ministry of HRD, that it is mandatory to have a counsellor in the premises and it should be categorically stated that it [homosexuality, bisexuality, and feeling uneasy and in conflict with the body or gender assigned at birth] is not a ‘mental disorder’. And, students and/or teachers shouldn’t be bullied because of their sexual orientation.
The Way Forward
We need to realise that we need to progress as a society which should have these characteristics: a just one, right to education for all, free from any discrimination based on sex, caste, religion, sexual orientation etc, equal citizenship rights to everyone, right to dignity, right to life, right to choose and marry their partner. Looks like the ideal society but that’s the way how it should be. Whatever rights we have, these are a result of constant negotiation with the State/Power/Authority and personally as well. And, Section 377 was a law which was robbing us from living freely and denying our right to live with dignity.
And, like always, we have definitely, by understanding the nuances of living in a modern society, have changed/amended rules and regulations time and again. Now that our love is recognised, we should celebrate it. But, as our first Prime Minister Pt. Nehru said in his famous speech at the stroke of the midnight hour on 15th August 1947, Tryst With Destiny: Are we brave enough and wise enough to grasp this opportunity and accept the challenge of the future?
I guess we should reflect on the immensity of this statement. And, I believe that we will definitely grasp this opportunity and will get our acts together and move forward as a society.