With SC breaking the siege, hopefully stigma against LGBT community will end

12 September 2018, 07:19 PM
Hopefully scraping of law against gay sex will end stigma against LGBT community (PHOTO: PTI)
Hopefully scraping of law against gay sex will end stigma against LGBT community (PHOTO: PTI)

What has been a taboo, stigma and a siege of the worst kind for centuries just because of a personal sexual choice in case of some has finally been broken today. A five-judge constitution bench of the Supreme Court led by Chief Justice Dipak Misra struck down the Section 377 of the Indian Penal Code. For over a century-and-half this piece of law treated gay sex among consenting adults of same sex as an offence punishable under the law. The sentence for this could go up to as long as 10 years in jail. And, thus, the members of the LGBT, or lesbian, gay, bisexual and transgender, community, who always lived under the dreaded shadows of this oppressive law, came out into the open for the first time to hail and welcome the top court order by breaking into never-before-seen jubilation.

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At the core of the issue before the court has been the right to love as per one’s choice or sexual preference and discretion. The society and, thus, the law too thought it to be too queer to be allowed and tolerated. Gay sex has always been taken as a threat to morality and established order of human conduct and behavior though it did not harm anyone, nor did its practitioners intend to challenge the general heterosexuality by intruding into others lives. Yet, the society and governments in the past were not ready to make an exception for homosexual sex through consensus among two grown up individuals. More than the law, the homosexuals faced the contempt and derision of the society with the result of their being pushed to the margins where even a violent outrage against them was a real possibility.

It was under these highly discriminatory and often trying circumstances that a movement for gay rights started building up both in the country as also elsewhere or mainly in the West. Violence and intimidation besides general castigation forced a few among the gays to take to activism for their rights. Court battles began both in the West as also within the country. An NGO, Naz Foundation, working for the rights of HIV-AIDS patients and on sexual health issues, filed a petition in 2001 in the Delhi High Court against Section 377 IPC. Eight years later, or in 2009, the Delhi High Court called the Section 377 which has been in force for as far back as 1861 to be in violation of the fundamental rights guaranteed by the constitution. Soon religious groups went in appeal to the Supreme Court against the High Court’s decision.

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The Delhi High Court judgment was reversed by the apex court in 2013. The Supreme Court ruled that amending or repealing Section 377 should be a matter left to Parliament and it was beyond the realm of the judiciary. However, in February 2016, a three-judge bench headed by the then Chief Justice TS Thakur said that all the curative pleas of the Naz Foundation and a few gay rights activists would be reviewed afresh by a five-member constitutional bench. The next year, the Supreme Court gave a partial relief to the LGBT community by holding that their right to privacy was a fundamental right. About sexual orientation, the court said, it is an essential component of identity; and the rights of LGBT population are "real rights founded on sound constitutional doctrine".

In July this year a constitution bench of the Supreme Court took up a review of its 2013 decision and hearing of petitions challenging Section 377 began once again. During the hearings, Chief Justice of India Dipak Misra made indications that over 150-year-old ban on gay sex may well be scraped. "We intend to rule, subject to arguments, that two consenting adults even if engaged in 'unnatural sex' will not be liable for prosecution for any offence," Justice Misra had observed. And in keeping with this refrain the controversial penal section was dumped once and for all on Thursday, September 6.

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The petition that was allowed was filed by five eminent persons who have distinguished themselves in their respective fields. One of the judges on the bench remarked that the unjustified penal section remained on the statute book because of the “lethargy of law” though this could well be the lethargy of the legislature besides that of the courts which are supposed to test the spirit of laws to keep them in tune with the constitution. One argument that kept the controversial section going for an unusually long time has been that homosexuality was against the order of nature. The court observed about this by posing the question as to who could decide about the order of nature. And in this case obviously others were deciding for the gays. But now with the court’s order it is going to be a past story.

Hopefully, the court’s judgment will show the way for the mainstreaming of the LGBT community and the discrimination against them will end as per the spirit and intent of the landmark judgment. More so since the judgment came after a long and hard-fought battle by thus far much maligned LGBT people.

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First Published: Thursday, September 06, 2018 05:56 PM
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