The Rainbow of Independence for the LGBTQ Community

Declaration of Independence for the people of the LGBTQ Community was delivered on September 6, 2018, where the Judgment by the Honorable Supreme Court has defanged the British-era Section 377 of the Indian Penal Code (IPC), which deemed that gay sex is a punishable offence. Now, it is no longer an offence under Section 377 to engage in consensual gay sex in private. Finally, after the struggling rain of almost 157 years, a draconian law has now been abolished, flourishing a fine rainbow in the history of Human Rights.

Across the globe, Lesbian, Gay, Bisexual, and Transgender people (LGBT) continue to face endemic violence, legal discrimination, and other human rights violations on account of their sexual orientation or gender identity, “Gender Identity is considered to be an inherent part of a person which may or may not need surgical or hormonal treatment or therapy” and “sex characteristics of a person vary in nature and all persons must be empowered to make their own bodily integrity and physical autonomy”. This community was always treated unequally and they were unacceptable in the society, they were considered to be a taboo to the society and were never seen with an eye of respect.Since it’s been a long war of demanding acceptance in the society, it’s a scorching legal slap to these beliefs – The Decriminalization of Section 377.

What is Section 377?

Section 377 of the IPC states: “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 ten years, and shall also be liable to fine.” This archaic British law dates back to 1861 and criminalises sexual activities against the order of nature.

This also has implications for heterosexuals, as consensual sexual acts of adults - oral and anal sex in private - are currently treated as unnatural and punishable under Section 377 of the Indian Penal Code.​

Why does it matter?

Section 377 criminalises a section of people for being a sexual minority. A cross-section of the people has approached the Supreme Court against the Penal provision. They are not just seeking protection as sexual minorities, but recognition of characteristics inherent in all human beings. They argue that the right to sexuality, sexual autonomy and freedom to choose a sexual partner form the cornerstone of human dignity. Section 377 has a “chilling effect” on the right of equality, liberty, life, dignity and non-discrimination on the ground of sex.

In 2009, the Delhi High Court had described Section 377 as a violation of the fundamental rights guaranteed by the Constitution. Religious groups, however, had appealed against the decision in the Supreme Court.

In 2013, the Supreme Court overruled the Delhi High Court order and re-criminalised homosexuality. It said that it was the job of the Parliament to decide on scrapping laws.

Today, the Supreme Court has finally decriminalized Section-377, where a five-judge Constitution bench of the Supreme Court on Thursday unanimously decriminalised a part of the 158-year-old colonial law under Section 377 of the IPC that banned consensual unnatural sex between adults.

The latest judgement by The Supreme Court

The bench headed by the Chief Justice of India Dipak Misra and comprising of Rohinton Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra pronounced their verdict in a 493-page judgment.

CJI Misra began by invoking the great German Philosopher Goethe, "I am what I am, so take me as I am."

Calling Section 377 irrational and arbitrary, the CJI stressed that the LGBTQ community enjoys the same rights as other citizens under the Constitution.

"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 over it," Justice Misra stated. 

He also said that any discrimination on the basis of Sexual Orientation amounts to a violation of Fundamental Rights.

The Court, however, said that other aspects of Section 377 of IPC dealing with unnatural sex with animals and children shall remain in force.

Justice Nariman in his concurring Judgement said that Homosexuality was not a mental disorder or a disease.

"Persons who are homosexual have a fundamental right to live with dignity," Nariman said.

It would be approppriate for the Central and State Governments to not only give the wide publicity but actually take the relevant measures to make the public aware even in thre backward areas.

Saying that individual liberty is the soul of the constitution, Justice DY Chandrachud observed, "Section 377 is a colonial legacy and it continued in the law book even after independence."

'History owes an apology to the members of this community'

Justice Indu Malhotra in her judgement said, “Sexual orientation is innate to a human being. It is an important attribute of one’s personality and identity. The LGBT persons deserve to live a life unshackled from the shadow of being 'unapprehended felons'" she stressed in her conclusion.

Who are the main Petitioners?

There are six substantive writ petitions and multiple interventions against Section 377 of IPC. The Centre is yet to reveal its stand on the issue. While it has so far supported the law, this time it is yet to file its response, which has been sought by the court. There are 35 Petitions before the court in the case.

Here are some of the petitioners:

Gautam Yadav: He is a Delhi-based programme officer with the NGO Humsafar Trust. Aged 27, his petition talks about how he faced bullying in school, which forced him to drop out at 15. He also details how he was a victim to threats of extortion based on his sexual orientation, and continues to face ridicule from his relatives for not being married, despite being in a committed relationship.

Ritu Dalmia: She is a Delhi-based chef who identifies as lesbian and is the owner of the restaurant chain, Diva. She filed the petition after the Supreme Court reversed the Delhi High Court’s judgment on Section 377, reinstating the law that criminalised consensual same-sex relations between adults.

Keshav Suri: He is the Executive Director of The Lalit Suri Hospitality group, which owns The Lalit hotel. He filed a petition earlier this year. Suri said the shooting in Pulse in Orlando (a nightclub in Florida where a June 2016 shooting left 49 people dead, many of whom were gay) was his “personal and professional awakening”.

Urvi: She is a research intern at the Indian Institute of Technology in Bombay and belongs to Anantapur in Andhra Pradesh. Urvi, who uses a different name in the petition, is a transgender woman and has struggled with poverty since childhood.

Arif Jafar: He is the Founder of the NGO Bharosa Trust in Lucknow. He was arrested under Section 377 in July 2001 and was jailed for 47 days. During the imprisonment, he says he was abused, tortured and humiliated. His case still drags on.

Akkai Padmashali: He is a transgender rights activist and filed a petition in the Supreme Court against Section 377 in 2016 along with two other transgender women, saying their right to privacy was being curbed under the law. Padmashali has been at the forefront of documenting and protesting the impact of the law on transgender people.

Out of these Petitioners, Mr. KeshavSuri is the one who belongs to a privileged family and took a stand by filing this Writ Petition to finely raise his voice against criminalization of Homosexuality. He has contributed to the Community at large by providing employment opportunities to the Transgender people,as these people have to face the problem of unemployment in our society, this is a great initiative taken by Mr. Suri.

Though it has been a long and harsh fight towards equality, there is still a long way to go, as discrimination in our societycontinues to exist, but as for now decriminalizing section 377 is a beginning.

By: Navin Kumar Jaggi and Ritika Chaudhary