By Arushi Sralech
On 6th September 2018, India’s Supreme Court issued a historic ruling confirming the right of the country’s LGBT people to express their sexuality without discrimination. In the landmark judgment, the Supreme Court decriminalised same sex relationships and partially scrapped the archaic section 377 drafted by the British administration back in the 1860s that criminalised gay sex between two consenting adults. The court, however, held that Section 377 would still apply to unnatural sex involving animals and minor children and sexual acts without consent will continue to be a crime.
The petitioners argued that Section 377 violated rights and principles enshrined in the constitution, like equality before law, no discrimination based on religion, race, caste, sex or place of birth and freedom of speech and expression.
Section 377 refers to ‘unnatural offences’ and says “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” Although prosecution under Section 377 is not common, gay activists say the police use the law to harass and intimidate members of LGBTQ community.
Brief History Of LGBTQ Rights
The first legal challenge to Section 377 emerged in 1994, from a campaign group demanding better treatment of people who were H.I.V. positive. The Supreme Court snoozed on the petition for seven years, decided to hear it in 2001, and dismissed it when the group’s lawyers failed to appear in the court. The same year, another non-profit working on H.I.V. issues raised a fresh challenge, and the case bounced through the layers of the judiciary for years, until in 2009, Delhi High Court ruled that Section 377 did not, in fact, pertain to consensual sexual relations and described it as a violation of the fundamental rights guaranteed by the Constitution.
But In 2013, that verdict was overturned by the Supreme Court, which said it was the responsibility of Parliament, not the judiciary, to change the law.
The Latest SC Judgement
In August 2017, the Supreme Court held Right to Privacy as a fundamental right. Sexual orientation, the court said, is an essential component of identity and the rights of lesbian, gay, bisexual and transgender population are real rights founded on sound constitutional doctrine.
The judgment stopped short of overruling the SC’s 2013 judgement that criminalises homosexuality since a challenge to section 377 was pending consideration before a larger bench of this court.
This time, the petitioners were high profile individual gay men and women, who were standing in the courtroom, in the flesh, and asking the judges for their rights. The petitioners were, Bharatnatyam dancer Navtej Singh Johar, Neemrana hotel chain co-founder Aman Nath, journalist Sunil Mehra, restaurateur Ritu Dalmia, executive director of The Lalit Suri Hospitality Group Keshav Suri, and businesswoman Ayesha Kapur. The petitions captured their stories of grief and loss and depression and that made a real difference.
Quoting the German thinker Johann Wolfgang von Goethe, ‘I am what I am, so take me as I am’, Chief Justice Dipak Misra and Justice A M Khanwilkar said, “Individual has sovereignty over his or her body and can surrender autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice and such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person’s nature.”
“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”, said Justice Indu Malhotra.
Finally, in September 2018, a five-judge Constitution bench led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, reversed its own decision and said Section 377 is irrational and arbitrary.
The Supreme Court also held “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.”
The judgement is not only a triumph for LGBTQ community but also for human rights and equality in India, a nation that prides itself of being the largest democracy in the world. Now every citizen of this country has the freedom to love without the fear of being punished.