This is definitely not what we were expecting: Activists after SC verdict on Section 377

New Delhi: The United Nations in India welcomed Thursday’s landmark ruling by the Supreme Court of India striking down a key component of Section 377 of the Indian Penal Code which criminalised specific sexual acts between adults, a law dating back to British colonial rule that has targeted in particular lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ) individuals and communities.

Terming criminalising homosexuality “unconstitutional”, Justice Chandrachud had said that the LGBTQ community possesses “full range of constitutional rights” including sexual orientation and partner choice. “LGBTQ has equal citizenship and equal protection of laws,” he added.

The SC also gave directives to the media to publicise the judgement, sensitisation of police, hospitals, educational institutions, and tell everybody that it is not a crime, or a disease, this is really phenomena.

Welcoming the judgement

A supporter of the lesbian, gay, bisexual and transgender (LGBT) community holds a rainbow flag as he celebrates after the Supreme Court’s verdict of decriminalising gay sex and revocation of the Section 377 law, during a march in Mumbai. Photo: REUTERS/Francis Mascarenhas

“This much awaited verdict is a remarkable judgement, not only for the country but for the whole world. The judges have said that the government should put an effort to implement the judgement and create an environment where people can live with dignity. We need to communicate with law enforcement agencies, do a lot of orientation with them, and as well at the grass-root level to make sure the judgement from the apex court is implemented well,” said Yashwinder Singh, LGBT rights activist, working with Humsafar Trust.

“We also need to go to the representatives of our government like the MLAs and MPs. If something comes from the Ministry of Broadcast and Information explaining people the idea of LGBTQ to people, telling them that there’s no need to be judgmental about one’s sexual orientation, only then can the mindset of society can be changed and de-stigmatised. We need to also talk about the inclusion of LGBT in the school curriculum…” suggested Yashwinder Singh.

Yashwinder Singh outside the Supreme Court

Understanding rights and the judgement

Are people in the LGBT community themselves aware of their rights?

“The judgement comes in very technical terms, so we need to communicate the conditions of the judgement to people in a simpler manner. If I compare today’s situation with 2009, then there have been some important changes. We see more people coming up talking about their issues, rather than just coming and dancing. Now along with the dance, and celebrations, people want more, they are aware and are ready to talk about their rights,” observed Yashwinder.

“But yet in general, awareness about judiciary terms is very low in our country. Since Sec 377 has been talked about a lot, and so people know some things about it, but there’s still a lot which needs to be clarified to general people, like the meaning of ‘privacy’ and nitty-gritties like that,” explained Yashwinder Singh.

We got more than what we expected

“Today particularly, the honour, pride and dignity of my community has been restored by the Supreme Court of India. I was mostly crying listening to the verdict,” said gay rights activist, Mohsin Malhotra, who was present at the Apex Court during the verdict.

“They spoke about LGBT community’s equal citizenship of this country, dignity of our identities — our identities are sacred. And they even apologised to our community in the courtroom. This is definitely not what we were expecting… It gives us hope that we will continue to progress forward in a more pragmatic approach, into being a truly inclusive nation as the world looks as us,” says Mohsin, adding “It is much more than what they expected.”

“We thought 2009 was a landmark judgement — but this is 495 cases — this is also about the fate of the entire country. It is about what choices are now available to the future generations of the country, the stigma will end, and people will no longer have to move from India and go somewhere else,” said Mohsin.

Section 377 explained from a lawyer’s perspective

The first transgender lawyer to win a case in India, Megh Sayantan Ghosh, explains the fundamental principles behind the concept of decriminalising Section 377, “Any carnal intercourse, which is considered against the rule of nature, is included under Section 377 of the Indian Penal Code. For example, homosexuality, intercourse with animals, and even some consensual heterosexual acts are a part of this section.”

“I’d call this verdict from Supreme Court a victory of love. And as a transgender and a lawyer, I congratulate all my community members,” said Megh

Act of bestiality needs to be monitored

“Glad the Supreme Court has finally realised that sexual practice or indulgence is highly personal. Neither the government nor the Constitution has any right to interfere in a human right which is so personal. Having shared that, I also believe that act of bestiality, that sec 377 was actually against, needs to be monitored to avoid perversion or harm to any animal,” expressed Tathagata Chowdhary, lawyer and founder of Theatrician.

The focus must now be on ensuring access to justice, including remedy; effective investigations of acts of violence and discrimination; and effective access to economic, social and cultural rights.