First step in long march towards full citizenship
The Chief Justice’s court in the Supreme Court was packed this morning with lawyers, petitioners and activists waiting to hear the judgment in the Section 377 case. Though the hearing had gone well, there was a nervous sense of déjà vu. After all, only five years ago, the court had been similarly packed when it had reversed the judgment of the Delhi high court and re-criminalised a swathe of people under a draconian colonial era law.
This time, the court did not disappoint. When the Supreme Court had upheld Section 377 in 2013, there was despondency and dejection. Today, there was nothing but joy and elation. There were scenes of people hugging each other in the courtyard outside Court No. 1, the court of the Chief Justice of India. However, the enormous extent of the victory is apparent only upon a close reading of the judgment.
The preamble of our Constitution guarantees to all citizens justice, liberty, equality and fraternity. However, for the members of the Lesbian, Gay, Bisexual and Transgender (LGBT) community, this promise was merely chimeric. The State had branded them as criminals – unapprehended felons as it were. Their most intimate acts of expressing love for their chosen partner ran afoul of the law. This provision also had a more insidious effect of making members of the LGBT community feel less than equal citizens. Discrimination against the community was socially and culturally entrenched as a direct consequence of this provision.
But the Constitution also gave us a Supreme Court which was supposed to safeguard each of these most basic and precious constitutional tenets and rights. Today, as so often in the past, the Supreme Court has shown that the faith the framers of the Constitution had placed in it as the ultimate guarantor of rights was justified.
The unanimous verdict of the court is that Section 377, insofar as it criminalises private consensual adult homosexual activity, is unconstitutional. In arriving at that conclusion, the court recognises an array of rights which inhere in the LGBT community. Each of the four judgments secures for the community equal protection of the laws guaranteed by articles 14 and 15 of the Constitution. The Court recognises the rights to autonomy and dignity enshrined in Article 21 as well as the right to express one’s sexuality as a facet of free speech. In recognising their rights, the overarching theme is that LGBT individuals are full citizens of the country and are entitled to all the rights which are possessed by any other citizen.
This may seem as a rather obvious proposition to those who sympathise with the community. However, to understand its true revolutionary effect, one only has to hark back to the judgment which upheld Section 377. Members of the community stay in the closet because they genuinely feel as though they cannot live their life freely and openly.
The various judgments also recognise the historical discrimination faced by the community. In fact, justice Indu Malhotra said that “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”. The judgment thus hopes to lay down law which will pave the way for a better future for the community. Justice Rohinton Nariman in his judgment has directed the government to publicise the judgment as well as give periodic sensitisation and awareness training to government officials and police personnel about the plight of the LGBT community.
The LGBT community still has a long way to go. A judgment alone cannot erase all the stigma and prejudice faced in society. Equally, there remain in the law a myriad of provisions which discriminate against homosexual people. There is, nevertheless, great hope. The judgment of the court today will render any discriminatory law or action against the LGBT community vulnerable to challenge. More importantly, the Supreme Court has thrown its considerable weight of moral authority behind the LGBT community. When structures of the state respect the rights of individuals and minorities, the discrimination faced by them starts to dissipate. Today is but the first step toward true equality, but one that shows the inexorable march towards full citizenship. Saurabh Kirpal is a senior Supreme Court advocate who represented one of the petitioners challenging Section 377 before the Supreme Court constitution bench. Views expressed are personal.