Author: Megha Pillai, Student at Jindal Global Law School
The momentous Supreme Court decision on 6th April 2018 legalized homosexuality in India. Ever since, any discrimination on the grounds of one’s sexual orientation would be considered as a fundamental rights violation. This came as a long-awaited move to alleviate the injustices meted out to the Indian LGBTQ community. And while this judgement will go down in history as a sigh of relief for the LGBTQ community, it becomes necessary to accept the fact that India is still lagging in its efforts to normalize and accept homosexuality in society. And amidst the bleak times that we live in today, where sexuality acts a parameter for something as seemingly trivial as renting a house, the fact that a High Court judge actually took up psycho-educational lessons from the LGBTQI Community to understand their feelings and issues and subsequently be better abled to deal with a writ petition signed by a lesbian couple appealing protection from the onslaught of police harassment and parents is nothing short of a welcome change.
The above paragraph sets context for the subject that I will be discussing in my paper, the tryst we Indians have with accepting homosexuality as a part of society. I shall be looking at this concept with the lens of the Indian Courts as the Judicial system happens to be the perfect reflection of society.
THE HISTORIC 2018 JUDGEMENT
The 6th of September 2018 saw a five-judge constitutional bench finally taking a decision to decriminalize homosexuality by means of a partial strike down of the colonial era-ridden Section 377 of the IPC (Indian Penal Code).
The esteemed bench consisted of the then Chief Justice of India, i.e., Dipak Misra and Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.
All relevant information regarding the case is aptly summed up by Zaid Al Baset’s article ‘Supreme Court Judgement against Section 377’ – The Navtej Singh Johar v Union of India ruling propounds that Section 377 is violative of Articles 14, 15 and 21, considering that it deems punishable any consensual sexual relationship amongst two adults entre nous and this includes homosexual, heterosexual, lesbian and transgender persons. “Provisions of Section 377 remain applicable in cases of non-consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of bestiality. There is much to appreciate about the comprehensive 493-page Supreme Court judgment against Section 377 delivered on 6 September 2018”.
BEFORE THE 2018 JUDGEMENT
Homosexuality has long been considered unnatural and wrong by people. And since the judicial bodies do nothing but mirror the society’s sentiments, it is conceivable that multiple LGBTQI personalities must have been meted out injustices by law for reasons of their then-undiscovered and talked about sexuality. Such people were forced into loveless marriages, child-rearing and other heteronormative norms.
One’s sexuality amounts to an integral part of one’s identity and the very fact that law once didn’t accept this sexuality shows that all LGBTQI people were stripped off a part of their identities. Something as recent as the 2017 the International Lesbian, Gay, Bisexual, Trans and Intersex Association report named 72 countries and territories who still practice same-sex relationships being criminalised (it includes India this report came before section 377 was decriminalized in India).
Our society then conceived homosexuality to be unnatural and immoral, to be against their beliefs and religious scriptures, to be against nature even. Way back in the past, people connoted sexual relations to one purpose: procreation and that was it. And since that objective could not be achieved in a same-sex relationship, the queer community was frowned upon. With this being the society’s mentality, it comes as no surprise that our judicial organs mirrored our discomfiture with the LGBTQ community with respect to unjust biases in judgement and more.
AFTER THE 2018 JUDGEMENT
The 2018 judgement awoke to equal parts of applause and critique initially. It did result in becoming a landmark judgement as after years of discrimination and despair, the Supreme Court had at long last endorsed the right of every human irrespective of their sexual orientation or identity. What makes this judicial decision particularly massive is the fact that this marked the end of an era where law would be a tool used against one’s sexuality, and that India would finally become one with the nations who preach and practice sexual identities and expression. It speaks a lot of about the judiciary, how it is supposed to be malleable as such, it must adapt to the society’s ever-evolving cultural, traditional and economic needs. This was a much-needed breather after centuries of oppression but this only acts as the beginning of our path of ultimate equality for all genders and sexes. The society must step up and attempt to accept and integrate the queer community into the society.
The judgement is a small win and we have a long way to go. Social discrimination against homosexuals is still prevalent but now the queer community can avail of law for protection. The most recent example as mentioned in the Introduction, Justice N A Anand Venkatesh even opted for undergoing psych-educational lessons and interactions with the LGBTQI Community in order to better comprehend homosexuality and the emotions and pressures that they go through. This speaks volumes about the progress being made, even by one individual in society. If more such judicial kingpins would take it upon themselves to advocate for true equality, regardless of one’s sexuality, the judiciary can help broaden society’s perspectives and help them evolve and accept all of its members in the truest sense.
- ‘Full text of Supreme Court’s verdict on Section 377 on September 6, 2018’, The Hindu, 6th September 2018.
- ‘India Court legalizes gay sex in landmark ruling’, BBC News, 6th September 2018.
- James O’Neill, ‘Supreme Court opinions usually reflect society rather than direct it’, The Courier, 29th June 2003.
- Press Trust of India, ‘Two years after Section 377: Judgement that said it with poetry and words from literature’, The Hindustan Times, 6th September 2020.
- Poulomi Saha, ‘RSS on Section 377 verdict: Gay sex not a crime but is unnatural’, India Today, 6th September 2018.
- Rebecca A. Clay, ‘Decriminalizing Homosexuality in India’, American Psychological Association, Vol. 50, Pg 24, February 2019.
- ‘Section 377: Here is everything you need to know’, The Economic Times, 7th September 2018.
- ‘Section 377 verdict Updates: History owes an apology to LGBT community, Supreme Court says”, India Today, 6th September 2018.
- ‘Section 377: Impact will be felt beyond India’, The Times Of India, 7th September 2018.
- Sudarshan Varadhan, ‘Indian court calls for sweeping reforms to respect LGBT Rights’, Reuters, 7th June 2021.
- Zaid Al Baset, ‘Supreme Court Judgement against Section 377’, Economic & Political Weekly, Vol. 53, Issue no. 39, 29th September 2018.
 James O’Neill, ‘Supreme Court opinions usually reflect the society rather than direct it’, The Courier, 29th June 2003.
 ‘Full text of Supreme Court’s verdict on Section 377 on September 6, 2018’, The Hindu, 6th September 2018.
 ‘Section 377: Here is everything you need to know’, The Economics Times, 7th September 2018.
 Zaid Al Baset, ‘Supreme Court Judgement against Section 377’, Economic & Political Weekly, Vol. 53, Issue 39, 29th September 2018.
 ‘India court legalizes gay sex in landmark rule’, BBC News, 6th September 2018.