In a fantastic judgment that was cheered across the globe, the highest court in India partially struck down Section 377 of the IPC, and embraced the LGBTQ community by making homosexuality legal in the country. People, both young and old walked out the streets in India flashing rainbow colours, cheering the judgement, as it is for the first time in history that their existence has found acceptance.
Stating that the law was based on gender stereotypes that reinforce sexism and hence, the effort to end discrimination against homosexuals, a bench comprising of Chief Justice Dipak Misra, Justice DY Chandrachud, Rohinton Nariman, AM Khanwilkar and Justice Indu Malhotra. They unanimously decriminalised part of the 158 year old “colonial law” that criminalised consensual, what is termed as 'unnatural' sex. Justice Indu Malthotra, the only woman on the bench, said history owed an apology to those persecuted in the past by the law.
Justice Chandrachud said, “Section 377 rests on deep-rooted gender stereotypes,” adding that Bennett Capers' binary gender system was based on 'hetero-sexism' defined as the “institutionalised valorisation of heterosexual activity.” He quoted Capers as saying that “sanctioning of discrimination based on sexual orientation perpetuates the subordination not only of lesbians and gays, but also of women.”
The Court was ruling on a bunch of petitions filed by several individuals seeking the scrapping of the 19th century law. The SC bench said, “The right to live with dignity has been recognised. Sexual orientation is a natural phenomenon determined by biology and science. Any discrimination on this basis is unconstitutional.”
CJI Misra read out the judgment saying, “Only Constitutional morality and not social morality can e allowed to permeate rule of law... Sexual orientation is one of the many natural phenomenon. Any discrimination on basis of sexual orientation amounts to violation of fundamental rights. After judgment in Puttuswamy case, privacy has been raised to fundamental right.” He also said, “Sans identity the name only remains a plain factor. Emphasis is laid on the identity of a person. The sustenance of identity is the pillar of life.” He called the Section irrational and arbitrary, adding that the LGBTQ community enjoys same rights as other citizens under the Constitution.
CJI Misra said that the judgment will be considered in all pending prosecutions. “Denial of self-expression is like death. Social morality cannot violate the rights of even one single individual. Sexual orientation is natural and people have no control on it.”
“Any discrimination on basis of sexual orientation amounts to a violation of fundamental rights.”
Section 377, which came into effect in 1861, deems sexual intercourse “against the order of nature” as punishable with imprisonment of between 10 years and a life sentence, along with a fine. Delivering his concurring judgment, Justice Chandrachud said, “Section 377 inflicts tragedy and anguish; it has to be remedied. This case is much more than just decriminalising a provision. It is about an aspiration to realise constitutional rights and equal existence of LGBT community as other citizens.” He added, “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.”
The petitioners
While the verdict still doesn't allow same-sex marriage in India, last week's ruling is a significant step towards the establishment of a liberal and progressive society in the country. The first public interest litigation (PIL) was filed by the NAZ Foundation, a sexual health NGO working with gay men against the Section 377 in the Delhi High Court. Delhi High Court had struck down the section as unconstitutional in 2009. However, on December 11, 2013, the Supreme Court overturned the court's judgment. It held that amending or repealing Section 377 should be a matter left to the Parliament and not the Judiciary. Three years later, five petitioners came forward and challenged the Supreme Court's verdict.
The lead petitioner is Navtej Singh Johar, a renowned Bharatnatyam choreographer and winner of Sangeet Natak Akademi. Johar moved against the verdict on Section 377 with his partner Sunil Mehra, one of the lead petitioners. He said the section violated the right to life and personal liberty guaranteed by the Constitution. Mehra, is a former journalist and media editor of Maxim magazine. He has been Navtej's partner since 1993. The third petitioner is celebrity chef and owner of niche restaurant chain Diva, Ritu Dalmia identifies herself as a lesbian. Also part of the team is 61 year old Aman Nath, owner and founder of the Neeramana chain of hotels. He was in a 23 year old relationship with known architectural restorer Francis Wacziarg till his death in 2014. Nath now lives with his adopted daughter Aadya Nath. The fifth petitioner is Ayesha Kapur, a former child artist and a well-known gay activist and speaker. A businesswoman, she works in the food and beverages industry.
In an interview after the ruling, Navtej said, “This is not to say that we haven't had our share of snide remarks and sneers. And this is also not to undermine the emotional, pschological, and physical violence that many of our friends have been subject to. We have learnt to normalise our marginalisation. But that does not mean that it is not deeply violating of our basic human dignity.”
UK and the World reacts the verdict
The historical judgment created quite a frenzy, with several religious organisations condemning the legalisation, but for the most part, there was a celebration for the official acceptance of the LGBTQ community erupted across streets in India. International organisations and celebrities too applauded the SC's liberal judgement. Sir Elton John and partner David Furnish wrote a piece for an Indian newspaper, lauding the judgment. They wrote, “We commend the Supreme Court for its remarkable decision to repeal the colonial-era Section 377. September 6 will go down in history, a day when India became more equal, a day when 18 per cent of the world's LGBT population was told, in the words of Justice Indu Malhotra, that they are “not an aberration but a variation”. And we congratulate the plaintiffs and activists who sacrificed so much for so long, to get to this moment. They too, belong to history.”
Spiritual Commissioner at Hindu Forum of Britain, Gauri Das took to social media in support of the judgment. He talked about a young man who, a couple of years ago, had called in on a BBC call in show, Das was part of. “Kartik agonised that he could not 'come out' and at the same time did not want to ruin a young woman's life by conforming to marriage. He concluded that if there was some pill he could take to change everything, he would take it.” Das wrote, “Thoughts of Kartik came to mind today as I saw this news article. I felt this agony back then, it was a heartbreaking story. Perhaps with this news breaking story, the many silent gay members of the Hindu community, including Kartik, may feel some ease to their anguish. Hinduism has always been very much 'live and let live' with respect of course, so I am glad this has been referred as a law from colonial times.”
The United Nations also welcomed the verdict, calling it the first step towards ensuring full fundamental rights to LGBTI persons. It released a statement saying, “The United Nations in India welcomes the landmark ruling by the Supreme Court of India striking down a key component of Section 377 of the Indian Penal Code which criminalised specific sexual acts between adults, a law dating back to British colonial rule that has targeted in particular lesbian, gay, bisexual, transgender and intersex individuals and communities.”
