Article 377: the SC has given love a good name

The decision on the writ petitions means the State will have to spell out its stand

In India, love is often treated as a transgression, unless it is practised along the right caste, class, gender and religious lines, and approved by parents, panchayats, and courts. A man was beaten half to death and set on fire before a phone camera to make a statement against ‘love jihad’. Word on the street is that love has a real bad name.

For members of the gay, lesbian, bisexual, transgender, intersex and queer (LGBTIQ) communities, Monday’s observations by the Supreme Court offer hope that their fight for their right to love continues. In 2016, two writ petitions challenging Section 377 were filed separately. Both argued that the Section, which criminalises any form of intercourse that is not penile-vaginal, violated constitutionally guaranteed rights, such as the right to personal liberty, privacy, freedom from discrimination and the right to equality before the law.

On Monday, a three-judge bench of the Supreme Court issued a notice on the writ petition, asking the Centre to respond. The petition, (Navtej Singh Johar and Others vs Union of India), had asked that the court recognise the right to sexuality, sexual autonomy and choice of sexual partner as intrinsic to personal liberty. Love is not simply a case of whom one chooses to marry, or to have consensual intercourse with. The only role that the state should play is to protect an adult individual’s right to express love that is consensual. If anything must be penalised, it is uninvited interference. The government will now have to spell out its stand on Section 377 in court. But by referring the writ petition to another bench, the Supreme Court has given love a good name.