Fingers crossed, silent prayers went up even as activists and well wishers waited with bated breath on the verdict of the apex court on what in India is a sensitive and somewhat prohibitive issue. Will it or will it not was the core even as the countdown had begun to the conclusion of a lengthy and arduous legal battle fought emotionally and sometimes bitterly for those demanding equality and an end to discrimination. At the receiving end were the over two million gay people in India whose fate hung in balance even as the Supreme Court debated the constitutionality of Section 377 of the Indian Penal Code. Once the five-judge constitution bench decriminalised the part which criminalises consensual unnatural sex, it was like granting a lease of life to those who have faced discrimination under a 158-year-old colonial law on consensual gay sex. Reversing its own decision the Supreme Court said the section is irrational and arbitrary. The Court delivered four separate but concurring judgments, setting aside its 2013 verdict which had re-criminalised consensual unnatural sex. The landmark judgement also placed India to be the 26thcountry in the world to decriminalise homosexuality.
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 by up to 10 years in jail under the 1861 law. Although prosecution under Section 377 is not common, there are enough instances where the Police has used the law to harass and intimidate members of the gay community.
The crux of the apex court judgement was that sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of Freedom of Expression; the members of lesbians, gays, bisexuals and transgender or LGBT community as they are better known, have the same rights as of any ordinary citizen.; respect for each others rights are supreme humanity; criminalising gay sex is irrational and indefensible and the provision of IPC had resulted in collateral effect in that consensual sex between LGBT person is criminalised and is violative of Article 14.
Article 14 of the Constitution of India promises equality before the law.
The 166-page judgment, also held that Section 377 had become an "odious weapon" to harass the LGBTQ community which was made a "societal pariah" by subjecting them to discrimination and unequal treatment. It also held that Section 377 in its present form violated Article 19(1)(a) of the Constitution, which deals with freedom of speech and expression.
"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…” the verdict said. It also held that "consensual carnal intercourse among adults, be it homosexual or heterosexual, in private space, does not in any way harm the public decency or morality adding that sexual orientation was one of the many biological phenomena which is natural and inherent in an individual.
Among many other things that stood out in the historic judgement one was the observation that "Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual…” adding that the right to live with dignity has been recognised as a human right internationally.
What also struck a cord was the observation that “History owes an apology to the members of the LGBTQ community and their families for the delay in providing redressal for the "ignominy" and "ostracism" they have faced through the centuries. It also spoke about the ignorance of the majority to recognise that homosexuality is a "completely natural" condition.
The judgements observed that denial of right to sexual orientation was akin to denial of right to privacy and Section 377 had consigned a group of citizens to "the margins", due to which the LGBT community were relegated to the anguish of being "closeted identities".
By stating that "It is difficult to right the wrongs of history…But we can certainly set the course for the future”, the judgment indicated that even while the clock cannot be turned back, there is hope for the future: “A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken 68 years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution." More importantly, it pointed out that Section 377 was “the product of the Victorian-era morality which was long gone and there was no reason to continue with it especially when it enforces Victorian mores upon the citizenry of India”.
Activists saw this as a beginning stating that the road ahead is long on issues including right to adoption and right to marriage.
That maybe but the judgement has made critics see red, as it were.
Politically too, the knives are out with the Congress hailing the judgement and calling it “momentous” and an important step towards a liberal and tolerant society and dismissing the age old colonial law as “anachronism” in this day and age.
The Rashtriya Swayamsevak Sangh (RSS), on the other hand, said that even though it does not consider homosexuality a crime, it does not support same-sex marriage as such relationships are not "compatible with nature".BJP leader Subramanian Swamy called homosexuality a "genetic disorder", hoping that a 7-judge bench will be moved to set aside the 5-judge bench order.
As of now the slugfest between morality and law has begun. There are groups talking of this polluting young minds and having no place in a conservative and traditional society like India. Members of the ruling BJP have also flagged health concerns saying that this could give rise to an increase in the number of HIV cases. Others said it is against Hindutva and needs to be cured; isdangerous to social morality; it leading to commercial profit since gay bars will be opened in all cities; and legalising it is celebrating a genetic flaw.
However taking a leaf from the India book, many neighbouring countries are gearing up to take their fight forward and pushing for reform of their laws in their respective countries. Therefore, even while critics are crying foul, the Court has set the tone for an India Forward move. It has also signalled that reform is the only way ahead and rights of individuals in democratic India are not in peril. Therefore, whatever the purists may profess, the judgement has demonstrated that India would stand tall on issues of liberty, freedom, equality, rights and the choices an individual may make.
The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: ([email protected])