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LGBTIQ community people, with a rainbow flag, celebrate the Supreme Court verdict which decriminalises consensual gay sex in Kolkata on Thursday. (PTI Photo)[/caption]
IANS/EMN
New Delhi, Sep. 6 (IANS): In a historic verdict, the Supreme Court on Thursday decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as "manifestly arbitrary."
In separate but unanimous verdicts, a five-judge Constitution Bench of Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra partially struck down Section 377 of the Indian Penal Code (IPC) as unconstitutional.
The bench said it is no longer an offence for LGBTIQ (lesbian, gay, bisexual, transgender/transsexual, intersex and queer/questioning) community to engage in consensual sex between two adults in private.
Reading out the judgment, Chief Justice Misra said attitudes and mentality have to change to accept others' identity and accept what they are, and not what they should be.
"It is the constitutional and not social morality which will prevail," said the court.
The verdict sparked celebrations in the LGBTIQ community across India even as the judgment was being read out. Many of the community members who had assembled outside the apex court jumped in joy and distributed sweets.
Chief Justice Misra said consensual sex between adults in a private space, which is not harmful to women or children, cannot be denied as it is a matter of individual choice.
Section 377 will not apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians, the court said, clarifying that sexual act without consent and bestiality will continue to be an offence under section 377.
"An individual has full liberty over his or her body and his or her sexual orientation is a matter of one's choice," said the Chief Justice.
"Time to bid adieu to prejudicial perceptions deeply ingrained in social mindset. Time to empower LGBTIQ community against discrimination. They should be allowed to make their choices," he added.
In a concurring judgement, Justice Nariman said homosexuality is "not a mental disorder or disease".
He said the LGBTIQ community has an equal right to live with dignity and are entitled to equal protection of law. He directed the Centre to give wide publicity to this judgment to remove the stigma attached to homosexuality.
Justice Chandrachud said to deny the LGBTIQ community their right to sexual orientation is a denial of their citizenship and a violation of their privacy.
"They cannot be pushed into obscurity by an oppressive colonial legislation... Sexual minorities in India have lived in fear, hiding as second class citizens," said Justice Chandrachud, adding "the state has no business to intrude on such matters".
Justice Indu Malhotra said that history owes an apology to the LGBTIQ community for all that they have suffered on account of the ignorance of the majority about homosexuality.
"LGBTIQ people have a right to live unshackled from the shadow," she said.
The Supreme Court verdict, which overruled its own earlier judgment, assumes significance as in the earlier round of litigation in 2013, the top court had reversed a Delhi High Court ruling decriminalising homosexuality.
The Delhi High Court bench, headed by then Chief Justice A.P. Shah, had in July 2009 legalised homosexual acts between consenting adults by overturning the 149-year-old law -- finding it unconstitutional and a hurdle in the fight against HIV/AIDS.
In December 2013, a Supreme Court bench comprising Justice G.S. Singhvi and Justice S.J. Mukhopadhaya in the Suresh Kumar Koushal and another vs Naz Foundation and others case, had set aside the high court's judgment and said that it was for the legislature to look into desirability of deleting section 377 of IPC.
The matter was subsequently resurrected in July 2016, when a fresh petition was filed by members of the LGBTIQ community -- dancer N.S. Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur -- which was then marked to the Constitution Bench by a Division Bench.
The reference was made on the basis of submission that it was the first time that individuals directly affected by the provision were approaching the court.
Among the petitioners are a batch of current and former students of Indian Institutes of Technology. Claiming to represent more than 350 LGBTIQ alumni, students, staff and faculty from the IITs, the petitioners said that the existence of Section 377 had caused them "mental trauma and illnesses, such as clinical depression and anxiety and relegated some of them to second-class citizenship".
As the news of the Supreme Court’s landmark verdict legalising homosexuality broke across the country, social media was flooded with celebratory expressions, news and opinions from LGBT supporters.
A nongovernmental organisation based in Dimapur, the Guardian Angel works for the Men Sleeping with Men (MSM) community. It’s director, Inatoli Chophy told Eastern Mirror after the SC’s verdict that the community was equally elated with the judgement. But she expressed apprehension that the Naga society may not yet be ready to accept that gays exist in our society.
"In the state, the MSM community are mostly marginalised section of the society and people do not accept them. They are ignored although most of us have come across them and their battle because of our mentality," Chophy pointed out.
'Across any society, MSM community exists whether we like it or not and they are part of us. Their existence has been in the past, present and will continue to exist. In the state, NGOs and funders need to advocate with the stakeholders, the MSM community and the church', Chophy said.
However, the NGO worker hoped that the Naga society will give the community their needed space, and support and empower the community.
Along with Guardian Angel-the only NGO in Nagaland working for the community, a number of youths from Nagaland reacted to the news that was shared in interactions with Eastern Mirror.
A stylist and owner of 'Lotha.Stephen' clothing line Stephen Lotha (name used with the person's consent) said: "There has always been a strong but a silent presence of the Lesbian Gay Bisexual and Transgender (LGBT) community in Nagaland since the past years. The difference is that people are more expressive now; many of the youngsters are openly expressing who they are because of awareness and great role models who they can relate to."
'There is a taboo attached to being gay and there is a fair amount of people that are openly against it and there are people who do not understand what it is. The verdict is historical for the community around the world and it is a victory for everyone. The impact might be felt lesser in Nagaland but it is a consolation for the community here as well.'
Another person Anthony (name changed on request) said that, 'love always wins at the end. Being gay isn't a choice you don't wake up one day and go I'm going to be gay today. So many people don't understand that love is love.'
"We have been asked, we have been taught, and we must learn to love people. I see nothing wrong in loving someone. Our world can only be a better place if we all learn how to love one another without expectations and without any calculation," said another person, who is gay, and did not wish to be named.