“LOVE IS BLIND”: Sec. 377 rests in peace

“LOVE IS BLIND”: Sec. 377 rests in peace

Introduction

Today rose the comforting sun behind a thin blanket of dark clouds and showers from heaven, and the ‘Rainbow’ flowered like never else.

Goes down another worn law in the shackles of time. It becomes a matter of a past now. The effects will not be visible instantly, agreed, but at least now ‘they’ are known.

Laughed the LGBTQ community open-heartedly today, when the orthodox legislation was declared unconstitutional by the 5-judge bench of the Apex Court. Some had eyes shining with hope, others had vision blurred with tears. God knows how many “mentally ill” people have gotten a recognized identity today. It remains unknown how many youngsters would have finally “come out of closets” today. Hopefully, that ‘closet’ will no more be talked of. They, finally, have the right to choose who they want to walk within the journey called “life”, and so shall they do. Effeminate actions will be ashamed of not more. Girls having masculine behavior would be embarrassed no more. “Just friends” status outside the room is no more necessary. Sacrifice the pretentious behavior in the fire of joy for eternity.

Only if you could be You…

The Past

Homosexuality has always been a taboo in India, considered as a dreadful offence. Feeling and loving differently, against the established notions of the society was treated as a crime in India.

Section 377 of the Indian Penal Code, which is a 157-year-old colonial era law, came into force in 1861 during the British rule in India which criminalised sexual activities "against the order of nature", including homosexual activities.

Section 377 deals with “unnatural offences,” and holds “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

However, today in a monumental and significant verdict in the history of India, the Five-judge bench of Supreme Court led by Chief Justice of India Dipak Misra, also comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra while striking down Section 377 of the IPC, ruled that "Gay sex is not a crime" and furthermore section 377 is "irrational" and " arbitrary".

In a progressive judgement passed by the Bench, recognizing rights of the LGBT community, the Supreme Court today said,

"Look for rainbow in every cloud......majoritarism cannot take away the right of any individual. A majority and it's opinion cannot be subsume the right of a minority."

It also maintained, "LGBT Community has same rights as of any ordinary citizen. Respect for each others rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible,"

Timeline of events which led to decriminalization of Homosexuality

2001- The seeds of this long-drawn battle were sowed in the year 2001, after a case was first filed by Naz Foundation, challenging the constitutionality of section 377 and calling for the legalisation of homosexuality. However, the Delhi High Court threw it out on the grounds that Naz Foundation had no locus standi in the case, since there were no LGBT people who were directly shown as victims.

2006- Subsequently a Special Leave Petition (SLP) was filed in the Supreme Court, which considered the matter significant and observing that Naz Foundation had locus, reinstated the case back to the Delhi High Court to be heard afresh. To buttress the campaign, an organisation called "Voices Against 377" was formed which also joined the petition.

2009- In July 2009, a Delhi High Court bench comprising of Chief Justice AP Shah and Justice S Muralidhar finally handed a victory verdict for the LGBT community in the case of Naz Foundation v. Govt. of NCT of Delhi 1, sternly supported LGBT rights, decriminalising homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.

2013- In December 2013, Supreme Court Justices GS Singhvi and SJ Mukhopadhaya overturned the earlier verdict in decision of "Suresh Kumar Koushal vs Naz Foundation2," and declared Section 377 as constitutionally valid, setting aside a 2009 judgment of the Delhi High Court.

The Naz foundation’s review petition in 2014 was quashed by the Supreme Court.

2016- Raising questions on the validity and sustainability of section 377, five petitions were filed by Navtej Singh Johar, an award-winning Bharatanatyam dancer, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. The petition, filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”

2017- Elevating hopes for people campaigning for decriminalization of section 377, a nine-judge Supreme Court bench while hearing petitions against India’s biometric programme Aadhaar unanimously ruled that privacy is a fundamental right. In its judgment, the court also stated, “Sexual orientation is an essential attribute of privacy. Discrimination against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”

July, 2018- The hearing in the challenge to Section 377 IPC commenced on July 10, 2018 before a Five-Judge Bench of Chief Justice Dipak Misra and Justices Rohinton Fali Nariman, AM Khanwilkar, DY Chadrachud and Indu Malhotra, which lasted for four days.

Day 1- On the first day of hearing, while dealing with a batch of petitions challenging section 377 of the IPC, which criminalises unnatural sex between two consenting adults, the Constitution Bench refused to defer the hearing regarding the issue, after the Centre sought four week's time to file its reply.

It was highlighted by Senior Advocate Mukul Rohatgi, appearing on behalf of Navtej Singh Johar, referring to various judgments including Hadiya, Shakti Vahini, Common Cause and said that the Supreme Court being the protector of fundamental rights, also has the duty to protect the LGBTQ community.

Day 2- On day 2, while leaving the decision to the 'Wisdom of Supreme Court', Centre took a neutral stand on the issue pertaining to decriminalisation of homosexuality and submitted that if Supreme Court declares Section 377 viz. “consensual acts of adults in private”, unconstitutional, “no other issue/issues and/or rights are referred for consideration and adjudication and therefore, may not be gone into.”

Menaka Guruswamy, the counsel arguing on behalf of IIT students and alumni said that Section 377 violates Articles 15, 19, 21 of the Constitution as it "discriminates" on the basis of the gender of the partners.

Day 3- While showing inclinement towards decriminalising Section 377, the Bench raised hopes of the LGBTQ community.

Justice Chandrachud opined, "We have created a society which deep-rooted discrimination against people of a particular sexual orientation. If 377 goes we hope that society's values will change."

Acknowledging the struggles and pressures faced by the LGBT community in the society, Justice Indu Malhotra said,

"This community feels fear in going to get medical aid. Even doctors discriminate. There are inhibitions and prejudices even in the medical fraternity. This is a serious violation."

Day 4- While reserving its verdict in the case on July 17, the Bench made it obvious that albeit if it legalize gay sex and intends to decriminalize Section 377, non-consensual sex would continue to be as an offence under Section 377.

Marking a triumphant end to a long ongoing battle and struggle for Justice for the entire LGBT community to love without fear, boundations or constraints, the Supreme Court of India on September 6, 2018, decriminalised gay sex between consenting adults by reading down Section 377 of the Indian Penal Code (IPC). However, the Court made it clear that sex with animals (bestiality), which also forms part of section 377, will continue to be a criminal offence.

Conclusion

Yes, love is blind enunciated the wise man once. And so was the society till now, affirm we. The honorable lady, Madam Indu Malhotra wrote in her judgment that, “society owes an apology to the LGBTQ community”. It indeed does. It owes an apology for attacking the happiness of two people. It owes an apology for judging people by their sexuality and not character. It owes an apology for secretly coaxing them to undergo “medical treatment”. It owes an apology for pushing them aside and making them realize that their sexual preferences and lifestyle decides their status in the society. How many shall we enlist? How many would you read? So, would it be wrong to say that it owes an apology for being ‘itself’?

The bench has shown collectively that it ain’t right to suppress a few because others want them abolished and abandoned. Every life counts. Although we can’t guess if after this historic judgment Marriage and Adoption Rights would be next to follow but as for the time being, let’s cherish the dim ray of an old lamp which finally overcame the blinding darkness.


FOOTNOTES

[1] Naz Foundation v. Govt. of NCT of Delhi on 2 July, 2009

[2] Suresh Kumar Koushal & Anr v. Naz Foundation & Ors on 11 December, 2013