Who would give a law to lovers? Love is unto itself a higher law. – Boethius
On September 6, 2018, the Supreme Court of India passed a landmark judgement decriminalizing gay sex, homosexuality and thus, in turn, invalidating Section 377 of the Indian Penal Code. The judges explicitly stated that sexual orientation of an individual is a fundamental right and consensual sex between adults of any gender is a liberty that is constitutionally granted.
This judgement not only reminded us of the power of judiciary but also legally dignified and recognized the LGBT community. But can the power of law change the mentality of its citizens? Does recognizing everyone’s right to love dignify homosexuality? Is India ready to accept the legalized community of LGBT people?
The Treacherous Road to Freedom
Section 377 is an 1860 law that was imposed under the British rule that criminalized “carnal intercourse against the order of nature”, thus criminalizing homosexuality. The route to ban section 377 was a torturous one but there was light at the end of the tunnel. The appeal to review the section was first initiated in 2001 and in 2009 the court decriminalized section 377 under the Naz Foundation vs the Govt. of India case.
In 2012 the Ministry of Home Affairs stated clearly that it was against such decriminalization, and in 2013, the Supreme court set aside the previous judgement. The LGBT activists mobilised support and when in 2017, the court stated that privacy is an intrinsic and fundamental right, the beam of hope had shone brightly.
In 2018 the court heard several petitions and on September 6 2018, it ruled that section 377 is unconstitutional and infringes on the autonomy, intimacy, and identity of an individual and thus decriminalized gay sex liberating the community.
The Matured Indian Society
The LGBT community has for a long time faced disgust and contempt by the Indian society. The cases of violence, rape, assault, murder against the community had become quite common. The homosexuals were not free to express themselves and their love for another person and so always lived in fear of attack.
Though, we as a society have matured and come a long way in accepting the fact that love is boundless. The Indian media has had a great contribution on this front with queer film festivals, films portraying the lives of the homosexuals, and magazines and radio channels for the LGBT community. The LGBT activists have also played a major role in spreading awareness towards acceptance.
The judgement given by the court had an inbuilt safeguard so that it cannot be subsequently revoked under the “Doctrine of Progressive Realization of Rights”. This judgement not only decriminalized gay sex but also gave validity to the LGBT community, their love, and their rights as humans with free expression.
Are We Ready to Embrace the Freedom?
The 495-page judgement of the Supreme Court has constitutionally recognized the love of same genders towards one another and not just the sexual acts. Section 377 has been struck down, but the fight is far from over. The community will have to continue to fight for their rights to marry, adopt children, protection from hate speech, and inherit their partner’s wealth.
Our society where poverty is omnipresent, the caste system cripples the dreams of the achievers, the sexual assaults against women go unnoticed, the right-wing Hindu activists preach vandalism, has indeed taken a bold step in decriminalizing the draconian section 377 but to change the mentality of people, the LGBT community will have to continue to crumble the borders of hatred.
You look ridiculous if you dance
You look ridiculous if you don’t dance
So, you might as well dance. – Gertrude Stein