By Anya Daftary,
On Friday, 7th September 2018, a landmark event occurred for India. Approximately 2 months ago, the case to quash section 377 of the Indian Penal Code was reopened by the Indian Supreme Court. Today, our country is more colourful than ever. The court took petitions to reconsider the criminalising “unnatural sex” from eminent personalities, such as Sunil Mehra, Ritu Dalmia and Aman Nath, amongst many others. In the verdict, the court said:
“We have to fester tolerance and peaceful coexistence, we have to respect them for who they are and not ask them to be who they aren’t”
This is not the first time that section 377 had been repealed in India. In 2009 the Delhi High Court said the the section violated articles 21, (No person shall be deprived of his life or personal liberty except according to procedure established by law.” ‘Life’ in Article 21 of the Constitution is not merely the physical act of breathing,) 14 (equality before the law or equal protection within the territory of India.The State shall not deny to any person equality before the law or equal protection of law within the territory of India), (1) and (2) prohibit the state from discriminating any citizen on ground of any religion, race, caste, sex, place of birth or any of them. and 15 ((1) and (2) prohibit the state from discriminating any citizen on the ground of any religion, race, caste, sex, place of birth or any of them) of the Indian Constitution. LGBTQ+ activists have been working for the past five years to fight the decision.
While people all over the country rejoice, The Supreme Court’s verdict was in reference to the Indian Penal Code which does not automatically get extended to Jammu and Kashmir. The state is governed by its own Constitution and criminal law—Ranbir Penal Code. In a society, we will always have Mavericks and mad people. We always have people whose minds have been colonised. They don’t think before they speak and they think they are right, so that is all right.
“Here is a judgment worthy of reading and rereading. It will endure as long as the court and the Constitution. The Supreme Court does here, and does exceptionally well, what constitutional tribunals are meant to do. It draws on the submissions made in court, lifts the discourse through layered research and then applies prodigious analysis to distil the core of the case. The challenge before the court was not about physical acts but about identity. A section of Indians found themselves criminalised for simply being who they are. This, the court held, destroys dignity and so severely undermines a person’s self esteem that the offending provision had to be declared unconstitutional. Courts derive legitimacy from the power of reasoning and analysis in their judgments. Thursday’s verdict is rigorous in its analysis, careful in its survey of global jurisprudence and, most of all, sensitive to the human condition. The judgment is founded on the recognition of the need for intimacy in developing human relationships. The heart of the judgment is the court’s belief that the Constitution creates zones of privacy and spaces for individuals to not conform. Constitutional morality trumps majoritarian notions. Indeed, no matter how small a minority, the Constitution will spring to its defence where the actions cause no harm.”
Shyam Divan, Advocate, Supreme Court of India
On 24 August 2017, the SC upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttuswamy judgement. The SC also called for equality and condemned discrimination, stated that the protection of sexual orientation lies at the core of the fundamental rights and that the rights of the LGBTQ+ population are real and founded on constitutional doctrine. This judgement was believed to imply the unconstitutionality of section 377. In January 2018, the SC agreed to hear a petition to revisit the 2013 Naz Foundation Judgment. On 6 September 2018, the court ruled unanimously in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex.” In 2008 Additional Solicitor General PP Malhotra said: “Homosexuality is a social vice and the state has the power to contain it. Decriminalising homosexuality may create a breach of peace. If it is allowed then the evil of AIDS and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society.” This view was shared by the Home Ministry. Homophobia in India is difficult to describe. It is not the type of homophobia people usually think of: outright violence or discrimination against homosexuals. In Indian society, the existence of homosexuality is simply not acknowledged, so that type of homophobia generally is unseen. They do not understand homosexuality, they do not see homosexuals, and, therefore, it does not exist. Indians acknowledge that “love comes after marriage” in India, but how it is still such a well accepted concept for our society, simply blows my mind.
On 6th September, when the junior-most and lone female judge on the Supreme Court bench Justice Indu Malhotra spoke on Section 377, it was a mic-drop moment. After Chief Justice Dipak Misra, Justices D.Y. Chandrachud and Rohinton F. Nariman read their opinions at length, Justice Malhotra took the microphone and said she would read only a paragraph from her 50-page opinion. She then said this:
“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…”
A loud cheer erupted in the courtroom, which echoed outside by millions, awaiting this judgement.
“It’s a phenomenally liberating judgement, it’s come late but it’s still undone the hurt and the damage caused by the cautial judgement in 2013 and it has pushed the envelope as far as fundamental rights are concerned. It shows that we are growing, evolving and we have the truth and the voice for the smallest of minorities. It recognizes the right for sexual minorities today.”
Madhavi Divan, Advocate, Supreme Court of India
Here’s to a colourful India!
You can read the full judgement here: https://timesofindia.indiatimes.com/realtime/sc_decriminalises_section_377_read_full_judgement.pdf