“Gay sex is not a crime.” This is what the Supreme Court said while passing its verdict on Section 377. A long and painful battle by the LGBTQ+ community in India finally got its much-awaited victory as the apex court decriminalized section 377. With this irrational law quitting India, it is indeed a day for celebration. A day for India to live up to its motto of finding unity in diversity.
According to the Indian Constitution, Section 377 stated “Whoever voluntarily has carnal inter¬course against the order of nature with any man, woman or animal shall be punished with life imprisonment or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” Introduced 157 years back during the British colonial rule in 1861 India, Section 377 of the Indian Penal Code ‘criminalizes sexual acts against the system of nature’ including the ‘intercourse between same-sex’, till now.
This law considers same-sex as a punishable offense with up to 10 years of jail time. Evidently, in 2009, Delhi High Court gave a historical judgment as it decriminalized consensual sex among the consenting adults, holding it in violation of Article 14, 15, and 21 of the Indian Constitution. While the country rejoiced, in 2013, the Supreme Court overruled the Delhi High Court’s decision and reinforced the criminalization of homosexuality in the country.
Naturally, this ruling by the Supreme Court attracted huge criticism from the LGBTQ community. Reportedly, in 2013, a curative petition was filed by Naz Foundation in the Supreme Court challenging its verdict of criminalizing the Section 377. Sadly, the Naz Foundation’s petition was dismissed by the apex court in 2014.
While there have been many attempts from all over the country to legalize the Section 377, in 2016, five petitions were filed by well known LGBTQ activists including dancer Navtej Singh Johar, journalist Sunil Mehra, hotelier Aman Nath, businesswoman Ayesha Kapur, and chef Ritu Dalmia in the Supreme Court.
These petitions claimed the ‘rights to sexuality, choice of sexual partner, sexual autonomy, privacy, life, equality and dignity with the basic fundamental rights granted by the Indian Constitution’. In a landmark judgment in August 2017, the apex court claimed the Right to Privacy as a fundamental right for the citizens of India, observing that sexual orientation is an important trait of privacy.
In July 2018, a Constitutional bench of five judges led by Chief Justice of India Dipak Misra, including Judges R F Nariman, A M Khanwilkar, Indu Malhotra, D Y Chandrachud began the hearing of these petitions by the LGBTQ activists who have struggled day and night to win their equality in the eyes of the law.
So, after many hearings and appeals, it is one of the most historical days for the citizens of the country because the Supreme Court of India has scrapped the Section 377 making homosexuality legal in India. It is evidently, the most groundbreaking win for the gay rights as the apex court have decriminalized the consensual gay sex.
While addressing the masses, one of the bench members, judge Indu Malhotra said:
“Homosexuality is a natural condition. This judgment will have a bearing on pending criminal case. History owes apology to the LGBT community.”
Moreover, Justice Chandrachud said:
“No law can be divorced from constitutional morality, the state has no business to intrude in personal matters, nor can societal norms regulate sexual orientation. Constitution protects fluidity of sexual experience. To deny members of LGBT community the full expression of the right to sexual orientations to deny them right under the constitution, its denial of the right to privacy.”
Justice Nariman had this to say on his verdict on Section 377:
“LGBT have a fundamental right to live with dignity, such groups are entitled to the protection of the law,” says Justice Nariman. “The government should give wide publicity to the judgment.”
Right after this historical judgment by the Supreme Court on Section 377, Indians took to social media to celebrate the victory of the LGBTQ community all over the country.
#WATCH Celebrations at Delhi’s The Lalit hotel after Supreme Court legalises homosexuality. Keshav Suri, the executive director of Lalit Group of hotels is a prominent LGBT activist. pic.twitter.com/yCa04FexFE
— ANI (@ANI) September 6, 2018
— East India Comedy (@EastIndiaComedy) September 6, 2018
— Trendulkar (@Trendulkar) September 6, 2018
It is a huge day!
Congratulations to all the activists and petitioners on #SupremeCourt judgement scrapping #Section377 Your perseverance just made #India a freer place for everyone ! #LoveIsLove #Pride #377Verdict #377Scrapped Three cheers for the #SupremeCourt pic.twitter.com/grA64TTB3w
— Swara Bhasker (@ReallySwara) September 6, 2018
Our highest court proved it can be progressive in its outlook!
Such a historic day which has given hope to so many people!
— Meghnad (@Memeghnad) September 6, 2018
Bollywood celebs express their happiness!
RIP #Section377. Happy birthday 2018 !! Equal love. Equal lives. Proud Indian today. ♥️🌈🇮🇳
— Nimrat Kaur (@NimratOfficial) September 6, 2018
Karan Johar agrees!
Historical judgment!!!! So proud today! Decriminalising homosexuality and abolishing #Section377 is a huge thumbs up for humanity and equal rights! The country gets its oxygen back! 👍👍👍💪💪💪🙏🙏🙏 pic.twitter.com/ZOXwKmKDp5
— Karan Johar (@karanjohar) September 6, 2018
Scream out loud!
I am very happy. Wanted to scream inside. Those judgments were amazing . Court says judgement needs to be given wide publicity. Needs counselling across board, hotelier keshav Suri on #section377 @htTweets
— bhadra Sinha (@BhadraSinha) September 6, 2018
Finally, love has won against all odds in the society!