This is the beginning of the end of prejudice: Supreme Court

New Delhi: The Supreme Court on Thursday decriminalized sexual relations between consenting homosexual adults in a historic judgement, thrusting diversity and pluralism into the centre stage of India’s public discourse.

Not only did it strike down a 158-year-old controversial legal provision of section 377, thus legitimizing same-sex relationships, it also signalled an end to prejudice, which it argued has bedevilled India.

Essentially, the ruling came as a strong endorsement of the idea of diversity at a time when the country is deeply polarized along ethnic, religious and caste lines.

Even before Thursday’s verdict, political opposition to decriminalization had begun to wane, amid a robust campaign by gay rights activists.

“Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards full development of his/her personality that we can call ourselves (India) a truly free society,” the Supreme Court said.

The judgement was pronounced by a Constitution bench headed by Chief Justice of India Dipak Misra and justices Rohinton Fali Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

The judgement marks the end of the first leg of the long-drawn battle for social legitimacy by the lesbian, gay, bisexual, transgender and queer (LGBTQ+) community. However, other issues such as same sex marriage, inheritance of property and civil rights are yet to receive legal sanction.

“When the court refers to the need of heterogeneity and says that the majority view cannot override the rights of a minority, it could well be setting the base for the next round of battles for civil rights,” said gay rights activist Sharief Rangnekar.

Section 377, a British-era law, criminalized any form of intercourse that was non-penile vaginal, deeming it to be “against the course of nature”.

“Section 377 is irrational, indefensible and manifestly arbitrary,” said Misra. “Majoritarian and popular views cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.”

The LGBTQ+ community possesses rights like all other sections of society and denial of self-expression to them was like death, Misra said. “I am what I am so take me as I am,” he said, quoting German thinker Johann Wolfgang Von Goethe.

Malhotra, the only woman on the bench, ushered in the personal rights of the LGBTQ+ community, saying, “LGBT people have the right to live unshackled from the shadow” and that “history owes an apology to the community” for the years of stigma imposed on them.

Bestiality will, however, continue to be an offence under the provisions of the Indian Penal Code, 1860.

Chandrachud explained how decriminalizing homosexuality was only the first step toward guaranteeing freedom to the LGBTQ community and that the Constitution envisaged much more. Human sexuality could not be confined to a binary and the state had no business in intruding in these matters, said Chandrachud. Treating homosexuality as a disorder or disease had a severe impact on the mental health of homosexuals.

Calling LGBTQ+ people “victims of Victorian morality” and setting the ground for change in the future, Chandrachud said: “It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalizing homosexuality. It’s about people wanting to live with dignity”.

The LGBTQ+ community welcomed the ruling. “The verdict was a tight slap on the faces of those who differentiated between people on the basis of their sexual preference,” transgender rights activist Laxmi Tripathi said. “This verdict is a real tribute to those people who committed suicide or who were raped due to the stigma. The judgement has vanquished the cruelty that existed for a long time and has maintained the faith in the Constitution.” At least 32 individuals, including celebrities, IITians and LGBTQ+ activists, had filed petitions to scrap section 377.

The issue of constitutional legality of section 377 was first raised by the Naz Foundation in 2001 in the Delhi high court, which held the penal provision to be illegal in 2009. The judgement was overturned by the top court in 2013.

Thursday’s judgement caps years of a steady move towards decriminalization, marked by greater social acceptability with both the major political parties—the BJP and the Congress—dropping their initial opposition. It also flows from an August 2017 judgement of the Supreme Court upholding the right to privacy, which laid the legal ground for a fresh interpretation of decriminalization of homosexuality.

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