Above: Supporters of the LGBT community celebrate the Supreme Court’s verdict/Photo: UNI
In a historic judgment, the Supreme Court quashed its 2013 verdict and decriminalised consensual homosexuality. But the fight to gain acceptance and change mindsets will be arduous
~By Puneet Nicholas Yadav
Five years after it attracted global criticism for upholding the 157-year-old draconian law criminalising consensual homosexual sex, the Supreme Court on September 6 made a much-needed course correction and created history. It was easily one of the most progressive and beautifully articulated judicial pronouncements of recent times.
The verdict by a five-judge constitution bench overturned the top court’s Suresh Koushal judgment of 2013 and read down Section 377 of the Indian Penal Code (IPC), thereby legalising consensual gay sex.
The verdict which granted the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community the dignity they craved for centuries began with Chief Justice Dipak Misra quoting German writer and thinker Johann Wolfgang von Goethe whose literary works often explored human sexuality at a time when the subject was largely taboo. He said: “I am what I am, so take me as I am.” For many of those present in the courtroom, the quote signalled that they could return home with their pride restored; the familiar prejudice they were subjected to by the top court five years ago was soon to be a memory.
Over the course of the next 30 minutes, the constitution bench comprising Chief Justice Misra and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra pronounced its unanimous verdict, decriminalising consensual homosexual sex while retaining the penal provisions for prosecuting bestiality and non-consensual homosexual or carnal sex. With the exception of Justice Khanwilkar, the other four judges penned separate but concurring judgments. The pronouncement may have taken the judges less than 30 minutes, but for those who were part of the legal struggle that preceded it, it had been a long, difficult and often disheartening journey.
The quintet of petitioners who, along with Naz Foundation, paved the path for social reform by challenging Section 377
“I am not a purple eye-shadow wearing, nail-painting, hip-swaying gay man but there are people who are like that and they have every right to be.”
Former editor of the Indian edition of Maxim magazine, exponent of dastangoi and documentary filmmaker Sunil Mehra is a well-respected figure in Delhi’s journalistic circles. The 63-year-old has directed, produced, written and anchored Centrestage on Doordarshan. Along with Navtej Singh Johar, his partner of over two decades, he has also co-founded Studio Abhyas.
Mehra met Johar in 1994 when he had been asked to do a profile on him. However, he later decided not to, telling his editor that he would be unable to write the story with the journalistic objectivity required of him. Mehra has faced his share of persecution because of his sexual orientation and had a turbulent coming out before his family. Coming from a family of bureaucrats, he had to forgo the civil services even though he cracked the exam for fear of his sexuality becoming known.
Though he has ended up in the limelight through the legal fight put up against criminalisation of gay sex, Mehra is essentially a private person. “I am not a professional homosexual. There is much more to my life than my sexuality,” he says.
Navtej Singh Johar
“Two men walking hand in hand or even hugging, and likewise for women, is quite acceptable in India unlike in the West. There has always been a discreet acceptance of homosexuality here.”
Bharatnatyam dancer, choreographer and yoga teacher, Navtej Singh Johar, 59, never told his father about his sexual orientation. The latter passed away when he was 21. A world traveller and Sangeet Natak Akademi awardee, Johar has come a long way since the days he struggled with his father’s disapproval of his choice of vocation. Johar’s orthodox Sikh family prized the macho lifestyle over the arts and was disappointed that he was not at all sports-oriented. However, Johar found limited acceptance from his sister in whom he confided when he was 18 and his dance and yoga associates who were more or less unconcerned about this aspect of his life.
Johar is angry that the existence of Section 377 meant perpetuation of the stigma attached to homosexuals and homosexuality in our society. “We have learnt to normalise our marginalisation. But that does not mean that it is not deeply violating of our basic human dignity,” he says.
“All my life I have done what I wanted to do, whether it is the person I chose to love or my career.”
Restaurateur, celebrity chef and co-owner of the popular Italian restaurant, Diva, in Delhi, Ritu Dalmia, 44, found her calling by chance. Born in Kolkata to a Marwari business family, she joined her family business dealing in marble at 16. Her work led her to Italy for sourcing where, over a period of time, she developed a liking for Italian cuisine. Since then, there has been no looking back for her.
Dalmia was 23 when she realised she was gay. “I did not question it at all and was comfortable with it. At some point, I spoke to my parents and while they were in shock, they said nothing. They wanted me to be happy. The next day, they sent a box of mangoes to my partner at the time. It was their way of accepting things,” she says.
Dalmia co-owns Diva with Gita Bhalla under the partnership firm, Riga Food. “Freedom to love is not just about sexuality. We live in a strange country where homosexuality has always existed. Our mythology is full of it. It was the Victorians who came and changed that. That’s why we filed the petition. We wanted people to wake up and smell the coffee. If things are to change, it has to begin with each one of us,” Dalmia says.
Aman Nath, 61, is a hotelier and historian. He is the founder and owner of the Neemrana chain of hotels. Passionate about history and architecture, Nath has written several books. He is also a poet. Nath’s work was the first Indian book chosen by Christie’s for worldwide distribution. Opera is another of his passions.
Nath lost his partner to illness. He became a crusader for gay rights because he “was asked by civilised people to stand up to the occasion” and because he fears “nothing”. “Also, because India tends to go on and on about the same issues—always moving in circles and returning to the same spot.
That is why I often quip that our Parliament was made round by the British so that we never reach any conclusion at the end of many decades of debating,” Nath says.
Growing up in New Delhi, Ayesha Kapur had never imagined she would one day lead the battle for gay rights in India. A business executive in the food and beverages industry, Kapur, 44, says that back in the 1980s, there was no role model or point of reference for her to turn to. “The word lesbian was like a bad word.”
“According to the law of the land, I can be handcuffed. It’s a very real prospect. Nothing stops the police from coming to the homes of the petitioners,” Kapur had recently said in an interview.
Today, her fears stand dispelled.
—Compiled by Sucheta Dasgupta
The legal challenges to Section 377, a burdensome legacy of the colonial era, had begun in 1994 with the NGO, AIDS Bhedbhav Virodhi Andolan (ABVA), seeking its repeal in the Delhi High Court. However, it ended in a dismissal in 2001 for want of sustained legal representation. Later that year, another NGO, Naz Foundation, moved the Delhi High Court demanding legalising consensual gay sex. But after three years of arguments, a bench of then Chief Justice BC Patel and Justice BD Ahmed dismissed this petition too. Despite this disappointment, Naz Foundation put up a sustained legal fight and won a massive victory in 2009 when the Delhi High Court’s then chief justice, AP Shah, and Justice S Muralidhar read down Section 377. They said that criminalising consensual sexual acts of adults is “violative of Articles 21, 14 and 15 of the Constitution”.
The victory of Naz Foundation, its flag-bearer, Anjali Gopalan, and her legal team, however, ended abruptly on December 11, 2013. A Supreme Court bench of Justices GS Singhvi and SJ Mukhopadhyaya overturned the Delhi High Court verdict in a heavily criticised judgment. It was this verdict that the constitution bench on September 6 termed “fallacious”, “retrograde” and “constitutionally impermissible” while ruling in favour of the writ petition filed by five eminent citizens—dancer Navtej Singh Johar, journalist and documentary filmmaker Sunil Mehra, hoteliers Ritu Dalmia and Aman Nath, and businesswoman Ayesha Kapur—in 2016. Several other petitions with a similar plea for decriminalising gay sex were also clubbed with the petition of the five prominent LGBTQ activists.
The verdict by the Supreme Court now not only restores the 2009 Delhi High Court verdict, but also fortifies it in the light of at least two other judicial milestones that the Court had crossed since then. First was its 2014 verdict that granted transgenders the status of third gender and gave them rights to seek remedy for any discrimination arising out of their sexual orientation (the NALSA judgment) and second was the 2017 judgment making privacy a fundamental right.
Yet, despite the euphoria over the verdict among the LGBTQ community and all those who speak for civil liberties, there are still challenges galore for these sexual minorities. This despite the romanticism of authors, philosophers, lyricists and thinkers like Goethe, Arthur Schopenhauer, William Shakespeare, John Stuart Mill, Leonard Cohen and Vikram Seth who were all quoted by the judges in their verdicts and the stunned silence of self-professed custodians of religion and morality in the hours following the judgment.
In his concurring judgment, Justice Chandrachud pithily said: “A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken 68 years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead.”
Long walk to freedom
2001: Naz Foundation, an NGO, files PIL in Delhi HC seeking legalisation of gay sex between consenting adults
2004: HC dismisses the PIL; gay rights activists file review petition, also dismissed. Petitioners approach SC
2006: SC sends the case back to HC
2008: Centre seeks more time after contradictory stand by home and health ministries. Final arguments in the case begin. The centre says gay sex is immoral and a reflection of a perverse mind. Government in its written submission before HC says judiciary should refrain from interfering in the issue as it is basically for parliament to decide
2009: HC legalises sexual activity between consenting adults of same sex. Delhi astrologer challenges HC verdict in SC. Several other pleas challenging the judgment also filed
2012: SC begins final day-to-day hearing in the case
2013: SC sets aside 2009 Delhi HC order which had decriminalised gay sex,.centre files review petition in SC seeking re-examination of its verdict
2014: SC refuses to review its verdict on criminalising gay sex, dismisses pleas of centre, activists. SC agrees to consider an open court hearing on curative petitions filed by gay rights activists against its verdict criminalising homosexuality
2016: SC refers curative pleas on homosexuality to five-judge bench. SC refers the plea of celebrities like dancer NS Jauhar, chef Ritu Dalmia and hotelier Aman Nath for quashing of Section 377 of the IPC, to a bench already seized of the matter
2017: SC declares right to privacy a fundamental right under the Constitution, also observes that “sexual orientation is an essential attribute of privacy”.
2018: SC agrees to reconsider its 2013 decision and refers to a larger bench the plea challenging Section 377 of the IPC. On July 10, a five-judge constitution bench commences hearing on batch of pleas. July 11: Centre leaves it to the wisdom of SC to decide the validity of Section 377.
SC reserves verdict, saying that the courts cannot wait for a majoritarian government to decide on enacting, amending or striking down a law if it violates fundamental rights.
September 6: Constitution bench unanimously decriminalises part of Section 377 of the IPC, saying it violated the right to equality
While the verdict allows consenting homosexuals to now freely engage in a relationship, existing laws do not allow gay marriages or LGBTQ couples the right to adopt a child. It is anyone’s guess whether Justice Chandrachud was prodding the centre and Parliament to take note of and resolve these challenges when he wrote in his verdict: “Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law.”
That the Constitution Bench did not rule on these matters was possibly because the Court had, at the outset, stated that it was only going to examine the reference on whether or not consensual homosexual sex should be legalized. Additionally, the central government, led by the BJP which has publicly termed homosexuality as being “against Indian culture and the order of nature”, had through an affidavit told the Court to decide on the constitutional validity of Section 377 as per its wisdom but maintained that it would file an affidavit if it decided to “construe any other right in favour of the LGBT community”.
It is not surprising that despite the barrage of praise for the verdict from rights activists and a majority of Opposition parties, not a single member of the Union cabinet nor the usually Twitter-happy prime minister had anything to say about a judgment that even forced the United Nations to issue a laudatory statement.
The UN said in an official statement that it sincerely hopes that the judgment will “be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons. We also hope that the judgment will boost efforts to eliminate stigma and discrimination against LGBTI persons in all areas of social, economic, cultural and political activity, thereby ensuring a truly inclusive society. The focus must now be on ensuring access to justice, including remedy; effective investigations of acts of violence and discrimination; and effective access to economic, social and cultural rights.”
Though neither the UN nor the Supreme Court spelt out the social and cultural rights that they hoped the verdict would guarantee the LGBT community, it is largely believed that the allusion is to granting conjugal and child adoption rights. These remain unanswered questions and are bound to take centrestage in the days to come as the full extent of the judicial victory sinks in with the LGBTQ community and they demand their fair share of rights. Another nagging concern is whether the judgment will actually alter majority opinion towards a section of society that many scornfully address as freaks and sexual perverts.
Justice Nariman in his concurring judgment has asserted that homosexuals “have a fundamental right to live with dignity… without any stigma being attached to any of them”. He has also directed the centre to “take all measures to ensure that this judgment is given wide publicity… and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers be given periodic sensitization and awareness training of the plight of such persons”.
This is easier said than done. The willingness of a government headed by a political party that has for years derided the LGBTQ community members as “mentally sick”, “immoral” or “people in need of medical help” to now hold hands with these individuals and usher them into the mainstream is also suspect.
Three years ago, Congress MP Shashi Tharoor had sought a Private Members Bill to be tabled in the Lok Sabha which would lead to decriminalising consensual gay sex but was silenced by angry BJP lawmakers. Tharoor told India Legal: “I welcome the Supreme Court’s decision. It vindicates my stand on Section 377 on the grounds of privacy, dignity and constitutional freedoms. It also shames those BJP MPs who vociferously opposed me in the Lok Sabha.”
He added: “In this country, we’ve allowed the government to interfere in the private lives of people, to discriminate against people on the basis of their sexual orientation and to infringe on the rights and freedoms the Constitution has long upheld. The Supreme Court has today stood up for equality of all our citizens, it has stood up for dignity of individuals irrespective of personal preferences and it has stood up ultimately for the value of privacy.”
One of the most poignant moments during the pronouncement of the verdict was when Justice Indu Malhotra read out her concurring judgment. She said: “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution… The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”
While the judgment may reinstate and embolden the pride of the “Rainbow Community”, there is no guarantee that it will end their ostracism and persecution by the “majority”. Gay rights activist and founder of the Humsafar Trust which works with the LGBT community Ashok Row Kavi termed the verdict one that gave the sexual minorities their “azaadi (independence) moment” but also sounded cautiously optimistic about what lies ahead. “This is only the first step. Yes, the verdict is quite unprecedented in many terms. It will empower the marginalised sections and ensure their social, physical and psychological welfare, but the struggles for acceptance will continue. It is now for society to realise the wrongs it has done and wake up to the fact that the LGBT community too has an equal right to a life with dignity.”
A day before the verdict was delivered, petitioner Mehra had told a leading English daily that there were people in the LGBT community who “genuinely feel the need to marry, adopt, to take a home loan or get the benefit of spousal insurance” and that he wanted to pursue this battle until complete equality is achieved.
That the LGBT community must no longer be discriminated against is, of course, the essence of the Supreme Court’s verdict. But, in a country where well-established laws are openly flouted and judicial orders ignored with impunity, would the mere expression of a hope to end centuries-old dogmas and persecution serve the desired purpose?
Religious leaders from different faiths have now begun expressing their regressive objections to the verdict. The BJP’s parent organisation, the RSS, put forward its prachar pramukh, Arun Kumar, to say that though “just like the Supreme Court, we also do not consider homosexuality criminal, but we don’t support it either because such activities are not in sync with nature and Indian society does not accept such relations”.
The Supreme Court may have hoped that its unanimous verdict to decriminalise consensual gay sex will help gay pride trump historical prejudices, but a judicial pronouncement, no matter how commendable, may serve little to change preconditioned mindsets. That is what we, the people at large, will have to fight for relentlessly.