Today, we step into a different world. On September 6, 2018, the Supreme Court’s has effectively decriminalised homosexuality and held Section 377 of the Indian Penal Code, 1860, as unconstitutional. The five-judge Constitution Bench consisting of CJI Dipak Misra, Justices R F Nariman, A M Khanwilkar, D Y Chandrachud & Indu Malhotra, has held #Section377 of the IPC unconstitutional, to the extent that it criminalises consensual sexual acts of adults in private.
Supreme Court of India declares #Section377 irrational, manifestly arbitrary and indefensible to the extent it penalises consensual sex of adults in private. Court has, accordingly, declared it unconstitutional to that extent. pic.twitter.com/iLElcTgF6G
— The Leaflet (@TheLeaflet_in) September 6, 2018
The Supreme Court bench of five judges by a unanimous and full majority verdict decriminalised LGBTQ lives and sexuality by holding Section 377, IPC to be unconstitutional in so far as it criminalises sex between consenting adults in private. The Court has further not limited its relief to merely decriminalisation, recognising it is but the only first step in creating a social and political reality to realize the right to love, but also mandated a periodic sensitisation and training workshops for all organs of the State and most importantly the police to end thr tyranny of criminalisation and stigma.
An organised form of queer resistance appeared in early 1990s in a citizen’s report by AIDS Bhedbhav Virodhi Andolan (ABVA) with the publication of it’s report ‘Less Than Gay’, with a quote by James Baldwin – “The victim who is able to articulate its situation has ceased to be a victim, he or she has become a threat”.
The queer movement also has many ways of articulation of its struggles, personal and political, but one that continues to resist being co-opted by ‘ally’ governments at the Centre — whether it was UPA II whose Attorney General was the first to file a review petition against the—December 11, 2013 decision of the Hon’ble Supreme Court in Suresh Kumar Koushal v. Naz Foundation & Ors., or be it the BJP whose Additional Solicitor General conceded the defense of the law during final arguments in July 2018 – as well as resists queer icons who believe that the road to salvation is paved with a Hindu religious and cultural nationalism.
ABVA filed the first writ petition to challenge the constitutional validity of Section 377 before Delhi High Court. The petition was dismissed in 1999 for non-prosecution just before Naz Foundation filed its petition in 2001.
In the meantime, the Lawyers Collective experience of work within the queer communities showed that a large number of problems such as stigma, discrimination, blackmail by police, intimate partner violence, accessibility of services for HIV and gay men subjected to conversion therapy by their families arose from the sanction of law under Section 377, IPC. The law was a sword hanging over our heads. Lawyers Collective teamed up with Naz Foundation, whose work gay and bisexual men also demonstrated the same struggles, and filed a writ petition in 2001 in the Delhi High Court to challenge the constitutional validity of Section 377, IPC.
The Naz Foundation has had a tumultuous journey; initially being dismissed for raising “merely academic questions” until it was remanded back to the High Court for full and proper consideration and hearing of all constitutional issues raised — right to equality and non-discrimination, declaring sexual orientation as a prohibited ground of discrimination in law, the rights dignity and privacy and the right to receive HIV/AIDS related information and healthcare goods, services and facilities. Throughout this process of queering the law, lawyers and queer individuals and collectives drew from each other’s experiences and took the fight onward. On July 2, 2009 the Delhi High Court pronounced its historic judgment by declaring Section 377 unconstitutionalin so far as it criminalized sex between consenting adults in private, and also carried forward the groundwork for robust minority rights jurisprudence. The judgment based it’s reasoning in progressive Constitutional law, it was inclusive in nature and liberating in its language as well in its operative order.
However, the victory from the Delhi High Court for queer lives was short-lived and overturned on December 11, 2013 by the Supreme Court on appeals filed by religious and cultural organizations
The protracted nature of the battle since has meant that many in the community lost our homes and families with the re-emergence of the narrative of stigma and criminalization, and for those of us more marginalized, it meant suffering violence and sexual assault without having a recourse in law for fear of self-incrimination.
Socially, many queer people learnt to recognise and love themselves with legal recognition and acceptance in 2009, and in characteristic style, many pledged to #NoGoingBackin our personal and public lives.
While the curative petitions against the 2013 decision were pending, several queer individuals filed fresh writ petitions to challenge the validity of Section 377, IPC because of few changes over the years. In the period between 2013 and 2018, the landscape of constitutional law in India had transformed with the advancements in transgender rights and self-determination of gender identity in NALSAand recognition of right to privacy as a fundamental right in the Puttaswamy case.
Fighting religious extremism from the ground zero to the highest office of the State, we learnt how hateful and violent campaigns for ‘beti bachao, bahu lao’not only pose a direct threat to our Muslim and Dalit friends but also queer women in particular — the axis of marginalization may be different (religion, caste, gender identity, sexual orientation) but it operates on the same premise of ‘other-ing’ and de-humanising us.
As the Court finally grants legal recognition to queer lives today, but eventually it is the articulation of a queer politics on the role of the capitalist State in similarly repressing our feminist, Muslim, Dalit, adivasi, farmer and workers lives and struggles and our alliance which will show us that another world is possible.
READ JUSTICE DY CHANDRACHUD”S OPINION HERE
READ THE COMPLETE JUDGMENT