Today morning, a five-member Constitutional Bench of the Supreme Court read down Section 377 of the Indian Penal Code to the effect of excluding private acts of sex between consenting adults from its ambit. Effectively, this judgment decriminalizes the Indian LGBTQ+ community and reaffirms their fundamental right to equality. This, in all probability, marks the end of the 27-year struggle to grant the community dignity in the eyes of law.
The long road to freedom has been far from easy. Long before the first Pride march took place in India, NGOs like AIDS Bhedbhav Virodhi Andolan (ABVA) and Naz Foundation doggedly pursued the fight against Section 377, often at great cost to themselves. Despite setbacks from populist pressures on grounds of a supposed sense of a historical morality, the earnest efforts of such activists has finally come to be rewarded. Along with the NGOs, the final stretch of the battle saw several eminent individuals from the queer community make themselves heard in the Court. This also included members of Pravritti, a pan-IIT LGBTQ support group.
Section 377 was essentially a vestigial remnant of the archaic relics of Victorian England that, along with other set of ideals, was forced on the Indian population. Au contraire to what many, who oppose the idea of sexual equality, claim to suggest, it is actually these very “Victorian Sanskaars”, and not those originating in the Indian context, that had come to define limits on sexual and personal liberty. Modelled around what was called the Buggery Act, the section criminalised, both, unnatural sexual acts along with the acts of rape. The strategy to club the two together and thereby to eliminate the element of consent from the discussion, is what shaped the attitude of the opposition against the decriminalisation of homosexuality in years to come. Ironically, however, it was England which repealed her ban of homosexuality with the Sexual Offences Acts back in 1967, while India continued to hold on those ideals until now.
Until recently the law stood a weapon that sanctioned harassment against fellow LGBTQ+ Indians. It authorised prejudice to be morphed into discrimination. Unsurprisingly it forced many to hide their true identities, at times from others and at times even from their own selves. It shaped the public’s attitude towards non-heteronormative sexualities, who learned to regard them as at best “outré” and at worst “a mental disorder”.
In striking down the arbitrary provisions of the section, the Supreme Court has firmly held that homosexuality is neither a physical nor a mental illness. This strikes at one of the very deeply-ingrained homophobic philosophies which cause parents to seek ‘treatment’ for their children who come out to them. This decision also paves the way for many corporate companies to be more openly supportive of their employees and bring the non-discrimination policies in their Indian workplaces at par with their other offices. As Justice Nariman exhorts that the government publicize the decision and sensitize its officials, we hope that the message of hope reaches out to every last Indian, especially that teenager sitting in a village who is still coming to terms with their sexuality.
As we first handedly witness history being made, it is incumbent upon us to not be complacent about this victory. Experience has shown that we need a sustained environment of support to enable all of us to march forthright with love and pride. As the generation of tomorrow, we must provide this support that extends beyond mere tokenism of a profile picture. It is painfully obvious that conversations around this topic are virtually absent, be it in family, friends or films. Homophobic slurs and insults remain the norm in casual talk. This needs to change starting with ourselves. We need to foster acceptance and inclusivity by proactively calling out and countering homophobia. Despite the long journey that still remains ahead of us to tread, we continue to hope that this amendment marks the starting of that transformation that many in India have yearned to see.
Karan Nikam, a representative of Saathi, the institute’s LGBTQ support group sums it up perfectly. “This day is indeed filled with pride and joy as an Indian. I feel happy to share this victorious moment with fellow Saathi members and celebrate this ground-breaking judgement in the history of modern jurisprudence by SC which reads down Section 377. Hum ho GAYe kamyaab! But it doesn’t end here. Let us also remember that it was this Supreme Court which denied us what was rightfully ours. Institutional and societal changes are required.”
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