After nine years of back and forth on the Section 377 issue, the Supreme Court finally passed a verdict on September 6, 2018, that declared freedom to choose sexual partners, irrespective of gender. The judgment has been lauded by the majority of people and was welcomed with open arms by the LGBTQ community. The Apex Court, while pronouncing the judgment, said that Section 377 violates the LGBT community’s right to equality, right to dignity, and right to privacy, and therefore it had become imperative to get rid of the 158-year-old colonial law. With this begins the dawn of a new era where love knows no bounds, and the lesbian, gay, and bisexual community no longer has to restrict itself to closed corners.
Section 377 not only criminalised unnatural sex including homosexual behaviour, against minors, and animals, but also consensual oral and anal sex. This draconian law basically meant no right to privacy – what you do in your bedroom was also under the scanner by the law. After the right to privacy was declared as a fundamental right, it acted as the pivot for further arguments and discussion on the freedom to choose a sexual partner and led to this historic judgment. Further, the verdict upholds the right to privacy and the protection of sexual orientation in light of the fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution.
The decade-long legal battle came to an end with five Judges of the top court unanimously decriminalising consensual “unnatural sex” and partially scrapping Section 377 to exclude any sort of consensual sex, be it oral, anal, or homosexual. The section, however, shall still remain in the statute and still will continue to criminalise unnatural sex with animals and minors, i.e., bestiality and sodomy.
The decriminalisation of homosexual behaviour happens to be the first of the many more battles required to be won for the process of full enjoyment of legitimate constitutional rights by the LGBT community like other citizens. The judgment is hopeful to bring legislative reforms for the LGBTQ community to enjoy other rights, including the right to marry a person of their choice, right to adopt a child, guardianship rights, and right to inherit property. It would also open new doors for amendment in existing laws in order to include LGBTQ individuals to avail their right to divorce, entitlement to alimony, seek relief under domestic violence, custody rights, etc. At present, there exists no legal provision for same-sex marriage, adoption rights, redressal against domestic violence, property inheritance, etc.
Justice Indu Malhotra gave a heartfelt apology to the homosexual community in her judgment, “History owes an apology to these people and their families. Homosexuality is a part of sexuality. They have the right of dignity and freedom from discrimination. Consensual sexual acts of adults are allowed for the LGBT community.”
The government has been directed by the Supreme Court to take all measures to properly broadcast that homosexuality is not a criminal offence. The decision is not just about decriminalising sexual acts, affecting the community’s right to dignity. The police also have to get periodic training to become sensitized about the issue, as directed by the top court.
Rohan Mahajan is Founder of LawRato.
(Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the views of YourStory.)