Celebrating the 6-9-18 Supreme Court Judgment on IPC 377

Take Me As I Am:

At SAATHII, we welcome and celebrate the unanimous verdict of the Supreme Court of India of 6-9-18 that has now decriminalized consensual sexual relationships among adults of any gender, a substantive victory for the lesbian, gay, bisexual, transgender, queer (LGBTQ) and ally communities who have been working towards this outcome for nearly fifteen years.

In doing so, the Constitutional Bench effectively reinstated the Delhi High Court’s (Justice A.P. Shah and Justice S. Muralidhar) verdict of July 2nd, 2009, which as it happened, came exactly a decade after India celebrated its very first Pride Event: the ‘Friendship Walk’ at Kolkata. The 2009 verdict had read down the Section 377 of the Indian Penal Code, to then address only non-consensual sexual relations, including, by definition, those with minors and animals. Unfortunately a two-judge Supreme Court bench on December 11, 2013, set that aside, rolled back the Naz verdict in the Koushal verdict, recriminalizing the LGBTIQ+ communities in what may perceived to be a blatant example of the State’s draconian overreach into citizen’s bedrooms.

Following numerous constitutional challenges by individuals directly affect by Section 377, the Supreme Court’s five-judge Constitution Bench, in a 495 page judgement, took an expansive view of the LGBTQ+ community and the Constitution, and trounced the Koushal verdict in no uncertain terms. CJI Dipak Misra, writing the judgment on Writ Petition (Criminal) No. 76 of 2016, began his (and Justice A M Khanwilkar’s) judgment with these words: “Not for nothing, the great German thinker, Johann Wolfgang von Goethe, had said, ― ‘I am what I am, so take me as I am’ and similarly, Arthur Schopenhauer had pronounced, ― ‘No one can escape from their individuality’.”

That, Take Me As I Am, is the crux of the matter. We live in a Republic predicated and built upon the grand humanist principles that have given the prime motive power to all human progress at least since the Renaissance. Within this worldview, there is no place for any “irrational, arbitrary and incomprehensible” fetters to any individual’s rights. We, the Republic of India, must accept the variegations amongst us, for if we do not, ‘We, The People of India’ no more ‘constitute India’. Not morally, not ethically, not in the eyes of our Constitution.

The First Step:

Even though, as Justice Dr D Y Chandrachud says in his very first remark, “The lethargy of the law is manifest yet again”, we at SAATHII would like to submit that the Indian elephant is not the Chinese tiger, nor the American bear, nor, even the improbable Japanese cheetah. We have an inherent mass that gives us both inertia and momentum; the key is just to get us moving. And this is precisely what the 6-9-18 judgment has done: it has gotten us moving.

Looking forward, we hope that our primary difficulty in addressing the HIV at-risk populations, that of their invisibility, will disappear, making our effort in this arena that much more effective. The social and religious stigma will stay a while more, however, when you take one burden off of a person, it eventually dawns upon them that their other burdens are removable too. That gives them the power to shake off the rest and live their lives in liberty and in joy. And in health. Which is what SAATHII endeavours to deliver. To as many Indians as we can.

But decriminalization by this Constitution Bench constitutes just the first step. This has been duly noted by CJI Misra and Justice Khanwilkar, “The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realisation of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ― ‘less than equal’ sections of the society.” Similarly, Justice Chandrachud notes, “Decriminalisation is of course necessary to bury the ghosts of morality which flourished in a radically different age and time. But decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements. The Indian Constitution is based on an abiding faith in those constitutional values. In the march of civilizations across the spectrum of a compassionate global order, India cannot be left behind.”

Over the years, we at SAATHII have broadened our vision of a concerted response to the HIV epidemic in India to one of universal access to health, legal and social services for communities marginalized on account of HIV, gender and/or sexuality. In our experiences of the last few years attempting to address bullying of gender-nonconforming children in schools and advocacy for inclusive government schemes, we have repeatedly experienced Section 377 as an obstacle to even introducing these conversations.

With decriminalization out of the way and inspired by the call for a transformative constitutionality, we rededicate ourselves to the purposes of making sure that families embrace their LGBTIQ+ and gender-nonconforming children fully and not regard them with shame and embarrassment; ensuring gender-nonconforming children do not get bullied in school; enabling everyone to complete education and gain employment; making workplaces inclusive and safe; besides ensuring that the healthcare establishment no longer regards LGBTIQ+ community members as mentally ill, and preventing and taking action against unethical and unscientific ‘conversion therapy’ attempts by unscrupulous medical practitioners and quacks. And finally, working towards reform of property and inheritance rights, legal recognition of same-gender relationships and those of transgender persons on par with the cisman-ciswoman relationships. In every which way!

The Burden of History:

Though this historical verdict brought India to the forefront of compassionate countries, we must not forget what Justice Indu Malhotra movingly notes, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality. The mis-application of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21.”

We also have to be mindful about what Justice R F Nariman observes, “We are also of the view that the Union of India shall take all measures to ensure that this judgment is given wide publicity through the public media, which includes television, radio, print and online media at regular intervals, and initiate programs to reduce and finally eliminate the stigma associated with such persons. Above all, all government officials, including and in particular police officials, and other officers of the Union of India and the States, be given periodic sensitization and awareness training of the plight of such persons in the light of the observations contained in this judgment.” The Govt. with other issues also hankering for its attention, will need to be supported by us to ensure that this most important part of the judgment is actually executed.

At this juncture we must not forget that of the diverse groups that make up the LGBTIQ+ spectrum, working class hijras and thirunangais and kothis bear the brunt of violence on the streets. Decriminalization of Section 377 will not render them immune to being rounded up under ‘public nuisance’, ‘immoral trafficking’, and other laws. Also, lesbian, bisexual, and pansexual women and transmen continue to face family violence, house arrest, corrective rape, and charges of kidnapping and abduction filed by parents against partners of their daughters. These also need to be addressed on a war footing.

Prime Directive:

‘Primum non nocere’. First, do no harm. How do we ensure that? We must fall back on the end part of point #3 in CJI Misra and Justice Khanwilkar’s judgement: “We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empower all citizens alike without any kind of alienation and discrimination.” And we will succeed so long as we follow this in our own lives and work.

And if we do so, we will also have performed our fundamental duty as enshrined in Article 51A(h), “to develop the scientific temper, humanism and the spirit of inquiry and reform”.

Thanks for showing us the way, Honourable and Precious Supreme Court of India, and having helped us read and understand our own Holy Book, The Constitution of India.

Note: Sections of the above statement are part of the community-crowdsourced response to which SAATHII staff have contributed.