“It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalising homosexuality. It is about people wanting to live with dignity.” – Justice Chandrachud
History is not made overnight. It takes years of scars, sweats, struggles and sacrifices to bask in the glory of the success, and then also one doesn’t get to do it in their lifetime. But they fight for it nonetheless, because there is no other way.
Everyone who has fought for the revocation of Section 377 must be feeling the same way on September 6, 2018. In a historic decision that can and will change the paradigm for the Indian LGBTQ+ community, Supreme Court of India partially read down the British-era draconian law that held homosexuality under “unnatural sex” and thus a criminal act.
Partially, because it still holds non-consensual sex and sex with animals and/or underage person(s), which is basically rape, as criminal offence.
Source: Hindustan Times
However, this journey was not by any means a simple or an easy one. And obviously, many of them did not get to witness this in their lifetime. But it is because of all their contribution that today the repealing of Section 377 was possible.
The events leading to September 6, 2018
1862: Section 377 was included in the Indian Penal Code when it was first developed on the recommendations of First Law Commission. It was never reverted even after India became independent from British rule in 1947.
1994: Almost half a decade later, ABVA, an NGO, filed petition in Delhi HC for revocation of the law after male inmates of Tihar jail were denied condoms. But the court did not follow through.
2001: Once again, another NGO, this time the famous Naz Foundation of Delhi filed another PIL with Delhi HC, seeking the same.
2004-2008: The decision was passed around by Centre and Parliament as none really made a stand for it. Centre submits arguments that homosexuality is ‘immoral’ but HC asks for scientific facts and not opinions.
2009: Delhi HC decriminalises homosexual acts.
2009-2012: Religious groups challenge the decision.
2013: SC overrules HC’s decriminalising decision and reverts back to Section 377 being legit. Marches break out in different cities of India in protest of this decision.
2014: SC recognises transgender people as Third Gender but Section 377 is still at large.
2015: Thiruvananthapuram Congress MP Shashi Tharoor submits private member’s Bill but Lok Sabha voted against it.
2016: SC says the decision will be reviewed anew by a new bench of judges.
2017: SC upholds privacy rights and says that it applies to LGBTQ+ people as well, since sex and gender is one’s private business.
January, 2018: It was decided that a five judge SC bench will reconsider hearing for and against Section 377.
July, 2018: Hearing starts on Section 377. Indian Institute of Psychology brings out an official notice declaring homosexuality not to be a mental disorder but a natural phenomenon.
September 6, 2018: SC decriminalises homosexual acts and gives equal rights to all sub-communities under the LGBTQ+ umbrella.
What did the Supreme Court say?
India has seen violence and discrimination against the LGBT community for more than one and half a century now. So for the Indian gays, lesbians, bisexuals and all other LGBTQ+ communities, the unanimity and conviction with which the 5 judge bench of SC overruled this 156 years old law gives some serious hope. Here are the key points that SC made while concurring on the matter:
– Homosexuality is not a disorder and Centre must give wide periodic publicity to the SC judgement to work towards elimination of stigma attached to LGBT community. – Justice RF Nariman
– Section 377 was a weapon to harass LGBT people, resulting in discrimination and decriminalising gay sex is only the first step towards burying the “colonial ghost”. – Justice Chandrachud
– State has no business controlling private lives of LGBT people or for that matter, any citizen. – Justice Chandrachud
– Sexual orientation is biological phenomenon and discrimination on this ground is violation of fundamental rights. – Justice Indu Malhotra
– Denial of right to sexual orientation is akin to denial of right to privacy. – Justice Chandrachud
– Section 377 as a whole is not struck down. The judgement said that consensual and private sex between all adults, irrespective of their gender, from now onwards is not a criminal act in violation of Section 377.
– “LGBT Community has same rights as of any ordinary citizen. Respect for individual choice is the essence of liberty; LGBT community possesses equal rights under the constitution. Criminalising gay sex is irrational and indefensible” – Chief Justice Dipak Misra, head of the bench
These were some of the key points made in the judgement that struck down a key component of Section 377.
Reaction to the verdict
Needless to say, the verdict received immediate applaud from all around the country, celebrities and common people alike. United Nations also lauded the Supreme Court of India to finally make this long-due decision. Twitter and other social media platforms exploded as expected.
“We have finally got justice. We are finally ‘azaad’ in ‘Azaad Hind'”, said Ashok Row Kavi, LGBT rights activist and founder of Humsafar Trust to ANI in an interview.
But the truth is, there is hell and heaven difference between setting down a law and actually implementing it all over the country. Once the hype about the decision dies down, it will be up to the Central and State governments to make sure that the right actions in concurrence to the decision are taken.
It has taken independent India 71 years to decriminalise homosexual acts. One can only hope that it would not take that long for the acceptance of it to spread all over the country and give the LGBT community the equal rights they deserve.
Source: Hindustan Times
However, on this day and date, this decision comes as a very important milestone step, upon which the rest of it will hopefully be build.
Because Justice Indu Malhotra was right when she said, “History owes an apology to the LGBT community and their families for ostracisation and persecution they faced because of society’s ignorance that homosexuality is a natural trait; its penal suppression infringes a host of fundamental rights.”
Feature Image Source: Scroll