6 September 2018 was a historic day for India. A five judge Supreme Court bench headed by the Chief Justice of India struck down section 377 of the Indian Penal Code of 1860, which regarded homosexuality as a criminal offence was struck down. There were celebrations across the country among the LGBTQ community; suddenly there were rainbows everywhere! A lot of people however didn’t get why this was such a momentous occasion. If I’m not LGBTQ, this doesn’t matter to me, does it? But it does! It so does!
A five judge bench of Justice Dipak Misra, Justice R F Nariman, Justice A M Khanwilkar, Justice D.Y. Chandrachud, Justice Indu Malhotra were unanimous in their verdict that section 377 was against principles of equality, the right to privacy and freedom of expression. The judgement is forward looking; choosing to abandon backward and divisive positions to embrace inclusivity and social justice.
People with different sexual orientations lived lives of secrecy and fear; always apprehensive that section 377 would be used to harass and hound them and their loved ones. They don’t have to do this anymore. The struggles of someone like Danish Sheikh are heartrending; hopefully the Danishes of the future will encounter a freer, better world.
Most democratic nations had long abandoned laws against homosexuality. Britain, which imposed 377 on India in the first place, got rid of it in the 1960s. India continued to saddle itself with a law until a few years ago when a High Court decriminalised homosexuality; only to have 377 upheld until finally the law was struck down now.
The threat of section 377 destroyed lives and relationships. It forced people to live false lives; without dignity. The right to one's identify and to a life with dignity are a part of right to life, clarified the court.
The judgement validates people’s identities, their lives and their right to love. It sends out the message that Indians are more liberal and progressive; that we need to broaden our views, become more accepting and loving of people who don’t conform to a narrow, constricting idea of ‘normal’. “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation,” observed the judgement.
The judgement contains some hugely significant statements – statements that have far-reaching consequences for all Indians who think of India as a diverse, democratic, free country. “Majoritarian views and popular morality cannot dictate constitutional rights,” noted the CJI, to indicate that just because a majority holds one view, this doesn’t make it valid; neither can the majoritarian narrative be foisted on minorities; sexual or otherwise.
There is still a significant amount of stigma that continues to be associated with homosexuality in our country. There is ignorance, suspicion and hatred confronting those with alternative lifestyles. Homosexuality is still viewed as deviant behaviour or a disease to be cured by significant portions of the population. “Section 377 inflicts tragedy and anguish; it has to be remedied,” observed J Chandrachud.
The headlines were all unanimous in appluading the SC’s progressive and sensitive pronouncements. It is hugely significant that millions now don’t have to hide, to be ashamed to be viewed as somehow living unnatural lives. Of course this is only the beginning: there is still the huge problem of public perception, social stigma and ignorance to overcome. Meanwhile we can all take heart from the fact that love has been freed from the shackles of narrow minds, prejudice and hate!
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