History Created: Section 377 Struck Down

How can people limit love by race or sex

And use the silly book as an excuse?

Judging others based on love, what is next?

Mankind watches the “abnormal” be abused.

There should be no difference to love.

Sexuality is not an option.

Love is a gift from God above.

Acceptance is the only solution.

In reality, love is all the same

Love is contentment, it is acceptance.

People should love who they love without blame.

Water and fire has a balance.

Fight to break down all the dividing walls

To eliminate hatred from the law.

 ~Anonymous Author

 

The historic judgment today proclaims a day break for individual freedom and is a noteworthy triumph for the LGBTQ (lesbian, gay, bisexual, transgender) community that has been contending energetically and constantly to make gay sex legal in India.

It is indeed a milestone judgment, where the five-judge bench of the Supreme Court on 6 September collectively in part struck down the British-period law which criminalized consensual gay sex in India.

The bench imparting such a historic judgment consisted of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

The journey of arriving at such a decision starts long back in 2001 when the NGO Naz Foundation had moved toward the Delhi High Court against it. In the year 2009, the Delhi High Court decriminalized sex between consenting grown-ups of a similar sexual orientation by holding the penal provision “unlawful”. But the joy for the LGBTQ community was short lived as in 2013, the SC re-established the culpability of the sexual connection between people of a similar sex. The LGBTQ community only saw a ray of hope in 2018, 10th July when the five-judge bench had clarified that it was not going into the curative petitions and would settle on new writ petitions on the issue.

Justice Indu Malhotra observes “History owes an apology to LGBT persons for ostracisation, discrimination…” While reading out the judgment CJI expresses his views stating “No one can escape from their individualism. Society is now better for individualism.” In the same lines we see Justice RF Nariman quoting that homosexuality cannot be regarded as a mental disorder. Justice Nariman also mentioned that both the administration and media must give more extensive exposure to the apex court’s decision to guarantee the community does not confront any kind of further discrimination. We find Justice DY Chandrachud saying “This case is much more than just decriminalising a provision It is about an aspiration to realise Constitutional rights and equal existence of LGBT community as other citizens,”. Justice Khanwilkar’s observed, “Section 377 has been partially struck down. The law will no longer apply to consensual same-sex acts between homosexuals, heterosexuals, lesbians but will still apply to bestiality and sexual acts without consent by one of them.”

The court while conveying the decision said the Constitution nurtures dissent as a safety valve of society. History cannot be changed yet can pass path for a healthier future, it included.

The SC likewise stated that because of the provisions in Section 377, individuals from the concerned community were compelled to live sequestered from everything and as second-class citizens while others delighted in the privileges of sexual orientation.

Four judges will pen separate judgments which means that judges could be differing in their opinion even though a common judgment is reached.

It is pertinent to note that sexual activity between individuals of a similar sex is legitimate yet same-sex couples lawfully can’t marry or acquire a civil partnership. Hope a change in legalising marriage between same sex couples is not a distant dream now.

While coming to the conclusion of this topic I feel it is quite appropriate to quote DaShanne Stokes who said, “Love should never mean having to live in fear.”

By Anwesha Ghosh

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