The Supreme Court this week struck down Section 377 of the Indian Penal Code, decriminalising homosexual intercourse between consenting adults in private. The thrust of the judgement is on upholding the right to equality, dignity, self-expression and choice of partner. In the eyes of the Supreme Court, the individual is truly supreme. It has given individual liberty a new dimension.
Section 377, a relic of the colonial rule, has been struck off India’s statute books after 158 years of being enacted and 71 years after independence. A tolerant, forward-thinking society has no place for such anachronistic laws which not only stigmatize lives but also cause them mental, physical and financial harm.
Indian citizens are now equal regardless of their choice of love and, crucially, their choice of sexual partner. Testing Section 377 against the touchstone of Articles 14, 19, 21 and 25 of the Constitution left no doubt in the minds of the five judges who decided the matter that this provision had to be read down to ensure equality for one and all. Love is love and love always wins.
The court emphatically held that “the LGBT community possesses the same human, fundamental and constitution rights as other citizenry do since these rights inhere in an individual as natural and human rights”.
In their concurring opinions, all the judges emphasised moving towards a more inclusive nation. Chief Justice Dipak Misra waxed eloquent, “Let us move from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life – as the herald of a New India – to a more inclusive society.”
The judgement came on a batch of petitions filed by members of the LGBTQ community. The filing of the pleas itself was a defining step in the long battle against this draconian provision. The petitioners included the celebrated chef Ritu Dalmia, businesswoman Ayesha Kapur, hoteliers Amar Nath and Keshav Suri, Bharatanatyam dancer Navtej Singh Johar, and a group of Indian Institutes of Technology alumni.
The demography of the petitioners ranged from Gen X to Gen Y to Gen Z. Gen X did not give up hope even though the legal battle against Section 377 lasted most of their lives. Gen Y, represented by people such as Suri, came forward to seek and create an environment of inclusion and acceptance in the corporate world for the LGBTQ community. Gen Z, represented by the IIT alumni, fought for equal opportunity and a non-discriminatory environment as they embarked on their professional lives.
This eclectic mix of the “rainbow warriors” represented a struggle for equality, respect, privacy and the right of choice at every stage of an individual’s life. In the end, they showed what courage, hope and the will to fight for one’s rights can achieve. On September 6, years of silent anger, frustration, stigmatization and exclusion faced by the LGBTQ community gave way to jubilation. When the verdict was declared, the first reaction in the corridors of the court was, “Finally, freedom!” Rightly so, for it was a victory of constitutional morality over majoritarian beliefs.
The court not only gave every Indian the right to choose their sexual partner but also observed with great magnanimity that “history owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the ignominy and ostracism they have suffered through the centuries”. To ensure that members of the LGBTQ community do not continue to be stigmatized and their mental, physical and financial lives hampered, the top court directed the central government to widely publicise its judgement and periodically run campaigns to create awareness about the plight of such persons.
Mother Teresa once said, “Don’t judge, just love.” The Supreme Court did just that, it did not judge the citizenry for their choice of love or sexual partner. The court simply said, “I am what I am, so take me as I am.”
Neeha Nagpal is a Supreme Court advocate who argued for the petitioners in the case against Section 377.
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