WE HAVE A NEW date to celebrate, not of Independence, but of Freedom. September 6th, 2018. The Supreme Court of India struck down a 157-year-old law and declared, ‘Section 377 is irrational, indefensible and manifestly arbitrary.’ A five-judge Constitution Bench of the Supreme Court decriminalised homosexuality by partially striking down the colonial era provisions of Section 377 of the Indian Penal Code (IPC). The Bench, led by Chief Justice of India Dipak Misra and comprising Justices Rohinton F Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra gave four separate but concurring judgments.
In the combined judgment, the CJI and Justice Khanwilkar said the Section would not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities but would apply to bestiality and sexual acts without consent by one of them.
Today’s judgment closely follows the August 2017 judgment on privacy. A nine-judge Bench of the Supreme Court ruled that the right to privacy was a fundamental right. In their order, Chief Justice of India JS Khehar and Justices RK Agrawal, DY Chandrachud and S Abdul Nazeer said, ‘Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.’
The new verdict reinforces that message, loud and clear. It gives the people of India the right to be left alone. This is not a verdict about ‘gay sex’, or the mechanics of a sexual act, this is a verdict about the most essential and elemental part of our lives, who we love, how we love, and how society looks upon us. It is about living lives of dignity.
India has never treated its LGBTQ community with decency, let alone respect. We might be open to men holding hands in public, women cloistered together at home, but we are ruthless when it comes to ‘difference’. The LGBTQ community has been systematically marginalised and derided in this country. Section 377 has been the strongest of weapons, in the weakest of hands. It allowed the police to turn into thugs, and families to morph into patrollers. Section 377 forced a community into hiding, and worse still, it seeped them in shame.
When Justice Indu Malhotra says “History owes an apology to these people persecuted by Section377 for the social ostracism caused by the Section,” she is apologising on the behalf of the State to the people. For too long, to be ‘different’ was to be ostracised. Siddharth Dube writes a searing ‘personal history of outlawed love and sex’ in his memoir No One Else (2015). In an interview in 2015, he told me, “The anger in this book is not about the course of my own life, but that gay people are still criminalised in this country. And there is nothing worse than that. People can come, take away your rights, and do what they like with you. No one should have to feel like that for what they feel and love.” Malhotra’s verdict not only acknowledges the experience of millions of other Siddharth Dubes who have been humiliated and enraged by the system, but also how as a society we need to atone for our cruelties.
Justice Chandrachud’s statement, “Human sexuality cannot be confined to a binary,” echoes the sentiments of both the pride movement and all of feminism. Gender, the court is telling us, is a construct, it is a spectrum. In a single line he rebuffs the tired stereotypes about men and women’s bodies and brains. Science and evidence have dispelled myths like the weakness of women and the strength of men. It is time for society to catch up with these truths.
This is a verdict that allows the individual to lead a life of ‘dignity, equality and liberty’, free from the moral tyranny of State or society. The ruling is a rebuke against the mob which believes in the reign of ‘sanskaari’ virtues. The court has told us it is ‘time to bid adieu to prejudicial perceptions deeply ingrained in our social mind set’. We can now rid ourselves of both Macaulay’s diktats and the rules of orthodoxy. Ideas like ‘the order of nature’ have always been used only by those in power to retain their positions of influence. Patriarchy wields it to keep women ‘in their place’. Similarly, behaviours that are not deemed as ‘gender normal’ are condemned as ‘against the order of nature’. Society tells us that to be ‘different’ is to be an aberration. But today the court has told us in no uncertain terms that the State cannot decide the ‘boundaries of what is permissible or not’.
The CJI’s statement—‘Societal morality cannot trump constitutional morality. Societal morality cannot overturn the fundamental rights of even a single person’ —merits mentions and attention. The Constitution is the citizen’s greatest defence against discrimination and permit for self- expression. September 6th, 2018, is a moment to celebrate personal choice, and all the colours of the rainbow.