The reading down of Section 377 of the IPC was a long time coming. It is a moment to celebrate the tenacity and perseverance of a long obstacle-ridden struggle for the right to love, to be accepted for who one is. “I am what I am, so take me for who I am”, affirmed the Supreme Court in its verdict.
Yet, this moment is not about the Supreme Court at all. Instead, it is about the legal struggle that persisted in the face of ridicule, stigma and institutionalised demonisation of which Section 377 was a part. A struggle that was larger than the legal one, of sexual minorities and progressive allies that symbolise, in words of Pt. Nehru, the “magic of the human spirit” to realise its long-held dream of equality.
The legal battle itself spans several decades. The first constitutional challenge was by the AIDS Bhedbhav Virodhi Andolan (ABVA), a collective of public spirited individuals from diverse backgrounds in 1994. Having published Less than Gay in 1992 — the first report on the status of same-sex desiring people, ABVA’s petition in the Delhi High Court sought the decriminalisation of homosexuality.
Later, in 2001, the Delhi HC once again confronted this question in a PIL filed by Naz Foundation, joined by a coalition of organisations and individuals called — Voices Against 377. By this time, there was enough evidence before the courts of the way in which Section 377 had exacerbated the vulnerability of sexual minorities to the HIV pandemic, besides exposing individuals to extortion, blackmail, stigma and violence on routine basis. The judgment that followed read down Section 377 to remove all adult consensual sexual relationships from the purview of the offence.
The decriminalisation verdict of 2009 by the Delhi HC was short-lived, with homosexuality being recriminalised by the SC in 2013. This long, protracted and contentious legal journey tells two stories. One about indefatigable human longing and striving for equality; the other that the slow wheels of law invariably catch up with aspirations of the oppressed belatedly.
Expressing this sentiment, the SC acknowledged: “Section 377 has travelled so much that it has been destructive to LGBT community. It has inflicted tragedy and anguish, which are to be remedied.”
To remedy the anguish however, requires much more than decriminalisation. For it was in 2010, at a time when Section 377 had been read down by the Delhi HC, that Ramchandra Siras of Aligarh Muslim University was subjected to humiliation, eviction, suspension that eventually cost him his life. So, while “history owes an apology to the members of this community, for the delay in providing redressal for the ignominy and ostracism that they have suffered”, the highest judiciary and the legislature must without delay address discrimination in all fields of life. The obstacles in the areas of education, employment, healthcare as well as the right to found a family of one’s choice must be tackled simultaneously for the verdict to impact lived realities of sexual minorities.
The recognition of equality and non-discrimination for women, SC and ST have as we know, not dismantled prejudice or enabled equal opportunity. Yet, affirmations of equality and non-discrimination are valuable tools for mobilising, aspiring and claiming rights.
Echoing B.R. Ambedkar’s sentiments that constitutional morality must trump populist sentiments, the CJI in Navtej Singh Johar judgment notes “majoritarian views and popular majority cannot dictate constitutional rights”. The significance of this principle at all times, but particularly at this political moment cannot be overemphasised. At a time of heightened populism, claims of hurt sentiments and majoritarianism, this principle must guide courts across the country, consistently and uniformly.
Madhu Mehra is the Executive Director of Partners for Law in Development, a women’s rights organisation that is part of the coalition, Voices Against 377.
