On Thursday, the 6th of September, 2018; India emerged victorious, witnessing a historic judgment. The Supreme Court made a historic verdict, decriminalising Section 377, stating that it was ‘irrational, manifestly, indefensible and arbitrary’. As the LGBT community was caught in euphoria and filled with pride throughout the country, it can be argued that the recognition of sexual rights of the LGBTQ community is in fact, just the beginning of the process for full enjoyment of all constitutional rights like any other citizen.
The abolition not only promotes equality and puts a stop to discrimination, but also affirms that the practice of unnatural appearing activities is not a mental disorder, rather something innate to a human being. With the verdict, the whole country rejoiced as finally, justice was served, discrimination ended, love emerged victoriously and all human beings were recognised as equal.
What does the Section 377 define?
The Section 377 of the Indian Penal Code criminalised ‘unnatural’ consensual private sexual acts between legal adults. The section defines that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.”
While the well-framed sentence might not appear to be barbaric, what it conforms surely is. The section actually criminalises a group of people for being a sexual minority, denying them the right to sexual orientation, sexuality, and choice of partner.
The provision declares all sexual acts that are against the order of nature, even consensual homosexual and heterosexual acts, a crime in the eyes of law. The dreaded section isn’t limited to homosexual acts only. It criminalises all unnatural sexual practices including oral and anal sex.
A Brief Timeline of the Struggle
The 150 years old ban on homosexuality came into force in 1862. After years of struggle and agitation, a legal victory was achieved in 2009 when the HC decriminalised homosexuality. However, this order was overturned by the SC in 2013 claiming that the HC verdict was ‘legally unsustainable’. However, in 2015, Member of the Parliament, Shashi Tharoor, introduced a private bill to decriminalise homosexuality. This bill was rejected in the Lok Sabha.
To continue the movement, 5 new petitioners moved the SC against Sec. 377 in 2016. Listening to their arguments, the SC referred their pleas to a 5-judge bench, instituted to review the section. Finally, in 2017, the SC declared that the right to privacy is a fundamental right and further added that sexual orientation is an essential element of privacy.
In the constitution bench hearing on 6th Sept. 2018, the SC denied the validity of Section 377, embracing inclusion and vanquishing prejudice.
Battles yet to be won – Jammu and Kashmir
As the entire country soaked in the victory and celebrated with pride, the LGBTQ community in Jammu and Kashmir remained muted. The verdict of the SC was in reference to the Indian Penal Code. Jammu and Kashmir however, does not fall under the jurisdiction of the IPC. The state is governed by its own Constitution and criminal law – Ranbir Penal Code (RPC).
The RPC, likewise to the IPC also criminalises sexual activities between heterosexuals. Thus, the decision of the SC is not applicable to the provinces of Jammu and Kashmir. What further toughens the struggles of the LGBTQ community in the state is the fact they have almost no voice owing to the cultural and religious orthodoxy of the state.
We can only hope that the crusaders of the LGBTQ community and the concerned authorities in Jammu and Kashmir draw inspiration from the achievement secured by the rest of the country.
Battles yet to be won – Legitimate Constitutional rights
Serving equality includes providing equal rights to all members. This includes the civil rights for the inheritance of property, same-sex marriage, sharing insurance and others. While the SC has taken a stand for the community, reluctance can still be sensed when it comes to same-sex marriages.
A government official, anonymously said, “Decriminalisation of same-sex acts was fine but the government would oppose any demand to legalise same-sex marriage.” Same-sex marriages are still believed to be against the norms of nature.
With this, the question arises, what exactly is natural? What are the ‘norms of nature’? We hope that the Indian LGBTQ will gain equal status in the society, as a natural and integral part of it and the Government will be able to see through the age-old norms and beliefs. Fingers crossed, love shall conquer all with pride!
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