A verdict of pride: Homosexuality no longer a crime in India, rules top court

By Prarthana Mitra

The Supreme Court on Thursday drove the final nail in the coffin for Section 377, the colonial-era law that sought to criminalise gay sex and was restored to full power in 2013. Delivering the final and unanimous verdict on the long-standing case, the five-judge bench heard petitions for and against upholding the 2013 judgement till July, before finally calling it “arbitrary” and prejudiced on September 6, a historic day for the country.

The landmark verdict read, “The LGBT community possesses rights like others. Majoritarian views and popular morality cannot dictate constitutional rights. We have to vanquish prejudice, embrace inclusion and ensure equal rights.”

Take me as I am, says CJI

Bringing a satisfying end to a decade-long struggle, the bench overruled the 2013 order which criminalised gay sex on grounds of “unnaturalness.” “Sexual orientation of an individual is natural and discrimination on the basis of sexual orientation is a violation of freedom of expression,” the court said on Thursday. Justice Nariman said that “homosexuality cannot be regarded as mental disorder” and “homosexuals have the right to live with dignity”.

Seeking equality for the LGBT community, Justice Chandrachud delivered his judgment after Justice Nariman, saying, “Section 377 inflicts tragedy and anguish; it has to be remedied.” “To deny the LGBT community of their right to sexual orientation is a denial of their citizenship and a violation of their privacy. They cannot be pushed into obscurity by an oppressive colonial legislation,” he said, adding that sexuality cannot be confined to a binary.

The hearing stressed on consent as key in sex between two adults, be it two men, two women, or a man and a woman. Justice Malhotra said that history owes an apology to those who have been persecuted and socially ostracised because of Section 377.

Reactions have been gay, for the most part

The centre declined to challenge the ruling, while the opposition hailed it as progressive. Subramanian Swamy expressly voiced his displeasure, reflecting “HIV cases will rise.” The Congress welcomed it with a tweet that read, “We join the people of India & the LGBTQIA+ community in their victory over prejudice. We welcome the progressive & decisive verdict from the Supreme Court & hope this is the beginning of a more equal & inclusive society.”

Activist groups and NGOs fighting for the cause for decades hailed it as a remarkable victory, a milestone in the LGBT struggle for inclusion and equal representation. Amnesty Internation India issued a statement saying, “The judgment closes the door on a dark chapter of Indian history. It marks a new era of equality for millions of people in India.”

The RSS stuck to the tune of calling gay sex “not natural.” Several Christian and Islamic groups have openly criticised and opposed the verdict, for destroying the family system, preventing the natural evolution and ultimately the progress of the human race.

What does this mean for the future of LGBTQ rights?

The verdict brings sweeping relief and a resounding victory for the country’s LGBTQ community, that has been compelled to live a closeted life and denied basic rights to consummate their love, due to the draconian law. However, the latest verdict does not extend to seminal issues like marriage, adoption, and inheritance.

Striking Section 377 down will also not result in an instantaneous change in society’s attitude toward homosexuality, but it will offer legal footing to the community, to fight for their rights and strike against the taboos and discrimination which the law had helped reinforce.

Centuries of stigma prevails in all walks of life, at home, in school, college and the workplace. With the legal mechanism on the right side for once, the gay community of India and its allies must build a stronger support system to call out homophobia at the dinner table, in bullying circles, in the boardroom and the streets. Correct representation of the community in media will also go a long way in reshaping public mentality and the verdict will empower and encourage influential people to come out and share their experiences to the cisgendered-heteronormative spectrum.

Ignorance breeds fear and misconception; taking Section 377 apart has been the first audacious step towards knowledge.

Prarthana Mitra is a staff writer at Qrius