Relief and hope at the end of a rocky road
In the wake of the landmark Supreme Court verdict overturning Section 377, Mint speaks to queer activists and allies on its impact, and the way ahead
“I have a big smile stuck on my face,” says Ritu Dalmia, celebrity chef and owner of the Diva chain of restaurants, speaking on the phone from the UK. “I feel a sense of relief that things aren’t so bad in India—that we are still a functioning democracy,” she adds. “Today my cynicism has gone down a bit.”
Dalmia’s sentiments would resonate with millions back home, as the Supreme Court of India made history on Thursday. In a strongly worded judgement, the Supreme Court read down the archaic section 377 of the Indian Penal Code (IPC), instituted by the British in 1861, which criminalized sexual intercourse “against the order of nature”.
A five-member bench, headed by Chief Justice Dipak Misra, read out four separate but concurrent judgements, unanimously diluting the law.
“Section 377 to the extent it criminalizes sexual acts between consenting adults, whether homosexual or heterosexual, is unconstitutional,” said the judgement co-authored by Misra and justice A.M. Khanwilkar. Such clarity comes after a long and rocky road pursued by activists, lawyers, members of the LGBTQ+ community and their allies for over two decades.
In 2009, the Delhi high court had decriminalized LGBTQ+ people in a progressive judgement, but a two-member bench of the Supreme Court overturned the stand in the Suresh Kumar Koushal versus Naz Foundation case in 2013. Worse still, it labelled the LGBTQ+ community a “minuscule minority” in India.
After Thursday’s verdict, Noor Enayat, partner, Peepul Consultancy, said, “(The 2013 ruling) was the most infuriating statement that I have probably ever heard. I think I’ll take a lifetime to get over the fact that it became a joke that ‘oh we’re a minuscule minority’.”
The five-member bench made sincere reparations in Thursday’s ruling, where one of the judges conceded that “history owes an apology to LGBT persons”.
In June and July, the five-member bench of the apex court heard arguments by lawyers representing 32 petitioners against section 377. The petitioners included noted names from the world of culture, science, business and industry leaders, including dancer Navtej Singh Johar, co-founder and co-owner of the Neemrana chain of hotels, Aman Nath, and Dalmia. Lawyers like Menaka Guruswamy, Arundhati Katju and Saurabh Kirpal led the petitions filed by the five private citizens among the 32.
Now that the verdict is out, and it’s a resounding one, the ruling could have wide-ranging impact on India’s social fabric.
“I don’t think that this judgement is just against 377. It is a judgement reminding us that we are continuously still in the process of making our society,” said Gautam Bhan, LGBTQ+ activist and a faculty member at the Indian Institute of Human Settlements. “When justices Nariman and Chandrachud say that decriminalization is the first step towards the state and society working together to create freedom from discrimination, that is freedom from discrimination of all kind,” he said.
“The Supreme Court’s verdict has given support and sustenance to the constitutional vision of a pluralistic, liberal, inclusive India that trusts its people,” said Tarunabh Khaitan, associate professor of law at the Universities of Oxford and Melbourne, on email. “But whether the legacy of this judgement rubs off on cases concerning the persecution of political opponents, inter-faith couples and alleged beef-eaters remains to be seen.”
Khaitan, whose work was relied upon extensively in the opinions of justices Chandrachud and Malhotra in the ruling, believes the judgement will likely have a significant impact outside India.
“A majority of the countries within the Commonwealth, who were formerly part of the British Empire, have provisions comparable to section 377,” he said. “The jurisprudence of the Indian Supreme Court commands significant respect in many of these countries. If they follow suit, we might well see a domino effect of decriminalization across the Commonwealth.”
For independent publisher Arpita Das, the victory is significant on professional as well as personal fronts. Her imprint Yoda Press has brought out a series of books on LGBTQ+ issues since 2005. Some of the titles in her list have influenced public conversations around the topic. Particularly crucial was the platform she provided to transgender writers like A. Revathi, whose book Our Lives Our Words made a stir for being one of the first of its kind in English. As mother of a 13-year-old girl who identifies as queer, Das is also immensely happy with the judgement. She admitted, though, that there’s a long way to go before the mindset is changed. “But this is a great ammunition to go about it,” she said.
For many in the community, Thursday’s verdict has brought one emotion palpably to the forefront. “Relief!” exclaimed Enayat. “It’s the relief from fear. It’s huge. And the Supreme Court coming out and basically saying, one of our peers made a mistake, made an incorrect judgement. We will rectify it. Which also brings back your faith in the judiciary.”
For Jayna Kothari, executive director, Centre for Law and Policy Research, the continued presence of section 377 affected the transgender community the most, despite the 2014 NALSA judgement, which upheld the right to one’s chosen identity. “Members of the transgender community are some of the most marginalized, visible and underprivileged on the LGBTQ+ spectrum, and now they can move forward to claim better healthcare, jobs, education and social respect,” said Kothari.
For Bhan, the verdict has upturned, once and for all, antiquated ideas of sexuality. “Talking about sexuality is not talking about sex alone. For sexuality, it is health, work, police, public space, employment. All of those things shape our lives and they are also shaped by our other identities. To me, what this judgement must give us is a conversation about discrimination, dissent and inequality.”