RAINBOW NATION
SC strikes down sec 377 as it violates right to equality Sexual orientation held to be a natural phenomenon Individual dignity can’t be hostage to social morality
NEW DELHI: It’s no longer a crime to be a homosexual in India. The Supreme Court on Thursday partially struck down the 157year-old British-era law that penalises consensual gay sex between adults, declaring that an individual’s sexual orientation is a matter of privacy and also an essential facet of one’s dignity. The LGBTQ (lesbian, gay, bisexual, transgender, queer) community possesses the same human, fundamental and constitutional rights as other citizens, the court said.
A Constitution Bench led by Chief Justice Dipak Misra said section 377 of the Indian Penal Code was arbitrary and unconstitutional to the extent that it punishes consensual intercourse between adults irrespective of their gender identity or sexual orientation.
SC held that section 377 infringed upon the fundamental rights of LGBTQ persons, who ought to be treated equally before the law, enjoy dignity and freedom of expression and not face discrimination. While reading his judgment, Misra said, “I am what I am. So take me as I am. No one can escape their individuality.”
In four separate but concurring judgments, the apex court ruled that societal morality cannot violate the fundamental rights of even a single individual. “Constitutional morality cannot be martyred at the altar of societal morality,” the bench said.
The judgement came on a batch of petitions filed by 34 individual petitioners belonging to the LGBTQ community, interventions filed by NGO Naz Foundation, parents of queer persons and Voices Against 377, a collective of human rights groups, among others. This was the first time LGBTQ persons filed writ petitions to challenge section 377’s constitutional validity.
Petitioners included Navtej Singh Johar, a Sangeet Natak Akademi awardee, chef and restaurateur Ritu Dalmia, transgender woman activist Akkai Padmashali, hotelier Keshav Suri, activists Arif Jafar and Ashok Row Kavi, and a clutch of IITians from an all-India alumni group Pravritti.
Justice Indu Malhotra, who is the lone woman judge of the fivejudge Constitution Bench, said, “Sexual orientation is an innate attribute of one’s identity, and cannot be altered. Sexual orientation is not a matter of choice. Homosexuality is a natural variant of human sexuality.”
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries,” she added.
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”
— JUSTICE INDU MALHOTRA "(The provision has been used as a) weapon in the hands of the majority to seclude, exploit and harass the LGBT community”
— JUSTICE DIPAK MISRA AND JUSTICE KHANWILKAR’S ORDER "...the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation"
— JUSTICE DY CHANDRACHUD
1998 Fire sparks protests
Shiv Sena activists vandalise posters of Deepa Mehta’s film ‘Fire’ during a protest against its screening in New Delhi. The film starred Shabana Azmi and Nandita Das and depicted them as being in a relationship. The protests also triggered a public debate on homosexuality and freedom of speech in India.
2008 Delhi’s 1st Queer Pride
People participate in the Delhi’s first Queer Pride March in 2008. The march happened while the Delhi high court was hearing a petition filed by the Naz Foundation against Section 377. A year later, the high court read down Section 377.
rage against gGlobal SC Day verdict of
LGBT (Lesbian, gay, bisexual and transgender) activists gathered in protest across many cities across the world to protest against the Supreme Court decision that recriminalised homosexuality. Shortly afterwards, review petitions against the ruling were filed by Naz Foundation and the government but were quashed.
RAJ K RAJ/HT ARCHIVE
2013 Activists protest
LGBT activists protest against Supreme Court's judgement on Section 377 at Jantar Mantar, in New Delhi on December 15, 2013. The SC overruled the Delhi HC verdict and left it to Parliament to repeal Sec 377 MOHD ZAKIR/HT ARCHIVE