Deepa Punjani

| @ | September 6,2018

The 158-year-old Section 377 of the Indian Penal Code (IPC), 1860, has been finally declared unconstitutional by the Supreme Court. This provincial section of the IPC criminalised sexual activities “against the order of nature”, which included homosexual activities. While it had a bearing on heterosexual activities just as much, the persons at the receiving end were almost always from the LGBTQ community, who faced severe repercussions.

Since 2009, Section 377 has had a somewhat tumultuous trajectory with signs of near victory to a reversion to the status quo. Things began to look up with the Puttaswamy judgment of 2017 by which privacy was declared a fundamental right.

Section 377, as observed by the Supreme Court in its judgment on September 6, 2018, is, “irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights

This was a defining judgment that brought back the heavily debated Section 377 to the limelight along with a plethora of other laws that must now undergo a deeper scrutiny. Needless to say, Section 377, as observed by the Supreme Court in its judgment on September 6, 2018, is, “irrational, indefensible and arbitrary. The majoritarian views and popular morality cannot dictate constitutional rights.” While the outcome of this was a somewhat foregone conclusion, this forward-looking development, is bound to raise other significant issues, especially pertaining to the rights of the LGBTQ community, such as same-sex marriage.

According to the Pew Research Centre, 20 countries have legalized gay marriages, which include all the 50 states of the USA after its apex court’s 2015 ruling in Obergefell v. Hodges as do some jurisdictions in Mexico

According to the Pew Research Centre, 20 countries have legalised gay marriages, which include all the 50 states of the USA after its apex court’s 2015 ruling in Obergefell v. Hodges as do some jurisdictions in Mexico. For people of the same sex to be given the same rights as heterosexuals in marriage, a live-in relationship, and similar other arrangements, along with rights of adoption and full participation in the civil life of their country with dignity, would be the ultimate progression. We are at an interesting stage now.

It is pertinent to note that the judgment underlines that constitutional rights cannot be at the mercy of a majority society’s views and its ideas of morality

In theory, there is nothing to stop our various marriage, adoption, inheritance and even labour laws from being amended in favour of the LGBTQ community; indeed Acts of the Parliament can go a long way in sanctifying these rights to be read along with the other laws, but in reality, we are still far from this liberal and progressive idea that would very much be in consonance with the fundamental rights assured by our Constitution. It is pertinent to note that the judgment underlines that constitutional rights cannot be at the mercy of a majority society’s views and its ideas of morality. These are significant words in our times for a number of reasons, among which is the upholding of the Constitution as the first, basic law of our country.

Recently, the Economic and Political Weekly has reported that the National Human Rights Commission in its first ever survey of the transgender community in India found that 92 % of the people from the Transgender community face economic exclusion

But the ground reality with high levels of social stigma against the LGBTQ community takes a number of forms. Recently, the Economic and Political Weekly has reported that the National Human Rights Commission in its first ever survey of the transgender community in India found that 92 % of the people from the Transgender community face economic exclusion. The article then goes on to list the failings of the Transgender Bill [The Transgender Persons (Protection of Rights) Bill, 2014] from an economic perspective.

We need therefore much more civil affirmative action with a more enhanced understanding of the multiple issues that the various communities, part of the larger LGBTQ, face on a routine basis. This presupposes a multi-pronged approach that cannot be simplistic.

The Section 377 judgment is a start. The road ahead is long.

Read the constitution bench judgment reading down Section 377.

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