Earlier today [Thursday 6th September 2018], the Supreme Court of India repealed Article 377 of the Indian Penal Code, which criminalized non-heteronormative sex between consenting adults.
In issuing the historic judgement, the Supreme Court (SC) rule on Thursday 6th September 2018 that consensual sex is not a crime, also highlighting that sexual orientation is not a crime.
This decision was the culmination of a long process, of a clement and human rights-centred position of the SC on non-heteronormative sexual orientations.
Back in 2017, the SC claimed that privacy is a fundamental right – a position that opened the door for fresh pleas to decriminalise non-heteronormative sexualities and sexual orientations.
In 2013, the SC overturned a 2009 decision of the Delhi High Court that decriminalised consensual sex between two adults of the same gender.
A five-judge bench reached the unanimous decision, with Mr Justice Deepak Mitra, the Chief Justice of India, himself pronouncing the first judgement, along with Mr Justice A.M. Khanwilkar. Their take was that “consensual sex between same gender adults in private does not fall foul of section 377 of the Indian Penal Code”.
Chief Justice Misra also added “”We have to bid adieu to prejudices and empower all citizens”.
Section 377 is a remnant of Victorian British legislation, imposed forcibly without the consent of the peoples of the land. Section 377, is part of an 1861 law, bans “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex.
In 2013, when the SC overturned the Delhi HC decision, Congress Party leader Sonia Gandhi issued the following statement, that we quote in full:
I am disappointed that the Supreme Court has reversed a previous Delhi High Court ruling on the issue of gay rights.
The High Court had wisely removed an archaic, represssive and unjust law that infringed on the basic human rights enshrined in our constitution.
This constitution has given us a great legacy, a legacy of liberalism and openness, that enjoin us to combat prejudice and discrimination of any kind.
We are proud that our culture has been an inclusive and tolerant one. The Supreme Court also suggested another course.
I hope that Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgement.
What Ms. Gandhi hoped for back then has now become a reality, after a long, time-consuming and painstaking battle, fought not by the political class, but by hardworking grassroots activists.
The 493-page SC judgement provides testimony to the positive and progressive evolution of the attitude of the Indian Supreme Court to the fundamental rights of Indian citizens. One key section reads:
History owes an apology to the members of this community and their families, for the delay in providing redressal for the 48 ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
Some activists were keen to clearly highlight the fact that this was a victory of a mass movement, a bottom-up process of tireless activism by thousands of people, with no tangible support from the political establishment:
Vedanth Sachdeva Govi, a gender justice and critical queer scholar-activist from Delhi, based at University College Dublin, noted that the judgement will give an opportunity for many individuals who were not and are not necessarily supportive of LGBT+ rights to jump in the bandwagon and capitalise upon the hard work of committed activists.
Mr Govi highlighted: “A whole lot of straight people are now going to turn up at Pride to increase their liberal credentials. Of course, these were the same people who have crossed over to the other side of the street when it wasn’t fashionable to claim a stake of the LGBTQ+ pie. In short, they had no stake in any activism whatsoever but alas! how fondly history will look upon them. Sigh. A synchronized bourgeois moral-sexual, straight-gay panoptic is already underway”.
“This is a very significant moment in the struggle for LGBT+ rights in the South Asian region”, noted Dr Chamindra Weerawardhana (@fremancourt), a Sri Lankan gender justice and SOGIESC rights expert and board member of the Colombo-based Venasa Network.
Dr Weerawardhana further added: “This judgement is very much an achievement of grassroots LGBTQIA+ activists. Every single member of the queer community who carried a banner, a flag, mobilised in their networks and communities, raised awareness around them, wrote, spoke and produced art about the importance of queer liberation, has a stake in this historic decision. This decision is living proof that the consolidation of LGBTQIA+ rights in postcolonial contexts is not something that can only be achieved by industrial NGOs that build the egos of specific individuals and work in a way that’s far removed from the local context of our countries. Instead, it is a task the can only be accomplished by building a mass grassroots ‘local’ movement. That’s the only way you’re going to move the judiciary and the political establishment in the right direction”.
“As a leading Sri Lankan media outlet that has been resolutely campaigning for human rights, gender justice and SOGIESC rights, Colombo Telegraph warmly congratulates activists in India who made this momentous achievement a reality,” its editor Uvindu Kurukulasuriya (@Uvinduk) said. (By Shamila Ratnayake)