2018: Beginning Of a New Era in LGBT History of India
On 6th September 2018, the supreme court of India decriminalised homosexuality by declaring certain parts of section 377 of the Indian Penal Code unconstitutional. The court ruled that individual autonomy, intimacy and identity are protected fundamental rights.
Impact
You might think of it as an ordinary judgement but for millions of LGBT citizens of India , it was like getting freedom from the
British Raj finally. For them it is not just a ruling but acceptance of their identity and acknowledgement of their different sexual orientation legally.
1. It made being Homosexual in India legal. Can you imagine, how it would feel to know that you will be labelled as a criminal in the eyes of your fellow countryman just by being who you are and by disclosing your identity which is inbuilt in your genes ?
2. Made same-sex sexual intercourse legal and one can’t be put in jail if anyone does FIR in police station against two such individuals.
3. Provided constitutional protections against discrimination based on grounds of sexual orientation and gender identity.
4. Will help in spreading awareness about existence of alternate sexualities in Indian society, their rights and positive contribution in society.
5. Gave dignity to homosexual individuals as they are no more deemed as criminal.
6. Will help in eliminating stigma attached to homosexuality.
7. Will give courage to millions of LGBT citizens who are still
in closet and are living in fear of shame and discrimination which their open identity will bring to them.
How, When and Where ( Timeline )
1. Ancient India was open to homosexual views, existence of homosexual individuals and never seen it as a disease or punishable or sinful act. Many erotic sculptures of Khajuraho depicts homosexual sexual activities as natural and joyful.
Many Hindu scriptures have references to characters who belonged to what we call LGBT community of today. One such example is 'Shikhandi' in 'Mahabharata' who was born female but identified as a male and eventually married a woman.
A Sculpture of Ardhnarishwar form of Lord Shiva
2. After 11th century A.D. , Delhi Sultanate formed laws which made same-sex sexual activities a punishable offence. These laws made their way into the Fatwa-e-Alamgiri ( compilation of laws ) followed during early 18th century. This book mandated a common set of punishments for Zina ( unlawful intercourse ). These could include 50 lashes for a slave, 100 for a free infidel or death by stoning for a Muslim. However, transgender individuals held high positions in courts of Mughal rulers.
3. In 1861, on a black day in LGBT history of India, British Raj criminalised anal sex and oral sex ( for both homosexuals and heterosexuals ) under section 377 of erstwhile Indian Penal Code. This made it an offence for a person to voluntarily have “carnal intercourse against the order of nature”.
4. India gained independence in 1947 and heterosexuals of India became free with enactment of Indian Constitution in 1950 but section 377 was as it is inherited in Indian Penal Code of Indian constitution keeping Indian homosexual citizens still the slaves of Victorian England morality and ideology.
5. England and Wales decriminalised same-sex sexual intercourse in 1967 by scrapping down section 377 from their constitution.
6. The movement to repeal section 377 was mainly led by an NGO named 'Naz Foundation (India) Trust' , a non-governmental organisation, which filed a lawsuit in Delhi High court in 2001.
7. In 2003 , Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter.
8. Naz Foundation appealed to the Supreme Court of India against the decision of High Court. The Supreme Court of India decided that Naz Foundation had the standing to file a public interest lawsuit in this case and sent the case back to the Delhi High Court.
9. In 2006, the National AIDS control Organisation filed an affidavit stating that the enforcement of section 377 violates LGBT rights.
10. Begining of Hope: In 2009, the Delhi High court decision in Naz foundation vs. Govt. of NCT of Delhi found section 377 and other legal prohibitions against private, adult, consensual and non-commercial same-sex conduct to be in direct violation of fundamental rights provided by the Indian constitution.
11. The Setback: Suresh Kumar Kaushal and one other filed case against 2009 Delhi High Court decision in the Supreme Court of India which overturned Delhi high court’s ruling stating that "we hold that section 377 of IPC doesn’t suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable."
12. The Revolt: Widespread response was seen against this decision in LGBT community. This decision leaded to awareness and importance of LGBT issues in whole Indian society as general. This also marked the beginning of pride parades on annual basis in various metropolitans and small cities of India—Hyderabad Pride ( 2013 ), Chandigarh Pride ( 2013 ), Guwahati Queer Pride Parade ( 2014 ), Queer Gulabi Pride Jaipur ( 2015 ) , Surat ( 2013 ), Baroda ( 2014 ), Orange city LGBT Pride March Nagpur ( 2016 ). In every march or parade there was only one slogan "Konsi dhara sabse battar , teen sau sathatar, teen sau sathatar".
13. Naz Foundation and others filed a review petition against 2013 Supreme Court Decision. On 28th January 2014, Supreme Court of India dismissed the review petition filed by Central Government , the Naz Foundation and several others.
14. In October 2014, National Television Show "Satyamev Jayate" aired on Starplus which dedicated its third episode wholely on LGBT issues under name : Accepting Alternative Sexualities . This proved as eye-opener for nearly 3/4th of Indian Population which were unaware of these issues. T.V. Show showed the pain and difficulties faced by LGBT individuals in India and acted as a catalyst in protest against striking down of section 377.
15. On 18th December 2015, Shashi Tharoor an M.P. from INC party, introduced a bill for the repeal of section 377 of IPC but it was rejected in the house by a vote of 71-24.
16. Return Of Hope : On 2 February 2016, the Supreme Court of India decided to review the petitions against criminalisation of homosexual activity.
In August 2017, the Supreme Court unanimously ruled that the right to individual privacy is an intrinsic and fundamental right under the Indian Constitution in an another ongoing case related to privacy. The court also ruled that a person’s sexual orientation is a privacy issue.
17. In January 2018, the Supreme Court agreed to refer the question of section 377’s validity to a large bench and heard
several petitions on 1 May 2018. Government of India decided to leave the case "to the wisdom of the court".
18. Victory: On 6th September 2018, the Supreme Court of India unanimously ruled that section 377 is unconstitutional as it infringed on the fundamental rights of autonomy, intimacy and identity, thus legalising homosexuality in India.
Click to see LGBT citizens rejoicing and celebrating their victory after long struggle.
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On that day, thousands of gays, lesbians and transgenders took to the streets celebrating, dancing, distributing sweets and having dreams of a more better tomorrow for them in this new era of India. Not only this, Media channels and Newspapers gave full coverage to this landmark victory and supported this ruling. That day each and every citizen of India got independence from British Raj.
What Gods Of Justice Said:
" Criminalising carnal intercourse is irrational, arbitrary and manifestly unconstitutional " –Chief Justice Dipak Mishra
" History owes an apology to these people and their families. Homosexuality is part of human sexuality. They have the right of dignity and free of discrimination. Consensual sexual acts of adults are allowed for [the] LGBT community. " –Justice Indu Malhotra
" It is difficult to right a wrong by history. But we can set the course for the future. This case involves much more than decriminalising homosexuality. It is about people wanting to live with dignity. " –Justice Dhananjaya Y. Chandrachud
Satyamev Jayte
The ruling by the court explicitly stated that:
Sexual Orientation is one of the many biological phenomena which is natural and inherent in an individual and is controlled by neurological and biological factors. The science of sexuality has theorised that an individual exerts little or no control over who he/she gets attracted to. Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of Freedom of Expression.
Nobody remains unaware:
The Supreme Court also directed the Government to take all measures to properly broadcast the fact that homosexuality is not a criminal offence, to create public awareness and eliminate the stigma members of the LGBT community face, and to give the police force periodic training to sensitise them about the issue.
So that it never happen again:
The judgement also included an inbuilt safeguard to ensure that it cannot be revoked again under the "Doctrine of Progressive Realisation of Rights".
Our Heroes
Chef Ritu Dalmia: Ritu Dalmia is an Indian Celebrity chef and restaurateur. She is the chef and co-owner of the popular Italian restaurant Diva in Delhi, which she established in 2000. She started hosting TV cookery show, “Italian Khana” for NDTV Good Times for 3 seasons. Ritu is a Lesbian and is a prominent LGBT rights activist. In June 2016, Dalmia along with five others filed a writ petition in the Supreme Court of India challenging section 377 of IPC.
Aman Nath: He is an Indian writer, hotelier and architectural restorer. He is the co-founder and co-chairman of the Neemrana Hotels chain, along with Francis Wacziarg. In June 2016, Nath along with five others filed a writ petition in the Supreme Court of India challenging section 377 of IPC.
Keshav Suri: He is the son of late hotelier, Lalit Suri, the founding chairman and owner of Bharat Hotels, which runs the Lalit Suri Hospitality group. Scion of owner of Lalit Hotels has been an active campaigner for gay rights in India and married his partner Cyril in Paris. In June 2016, Suri along with five others filed a writ petition in the Supreme Court of India challenging section 377 of IPC.
20 IITians also fought
Criminalisation of section 377 has resulted in a sense of shame, loss of self esteem and stigma. Despite being amongst the brightest minds in the country with the best possible opportunities available in terms of career, these IITians are nevertheless criminalised by the archaic colonial provision in section 377 and are deprived of the rights and freedom guaranteed to them by the constitution. Names of these IITians are not known ( or kept secret ) but they too were heroes and deserve appreciation.
Freedom Is Achieved, Equality Not
Yes, the LGBT individuals are given the right to be themselves finally and they are not criminals now but there is a long road to complete freedom—Unless and Until following laws are not formed and proper implementation of formed laws is not there, we can’t deem fellow LGBT citizens as equal. Such necessary laws are:
- laws concerning the recognition of same-sex relationships, including same-sex marriage, civil unions, and domestic partnerships
- laws concerning LGBT parenting, including adoption by LGBT people
- anti-discrimination laws in employment, housing, education, public accommodations
- anti-bullying legislation to protect LGBT children at school
- hate crime laws imposing enhanced criminal penalties for prejudice-motivated violence against LGBT people
- bathroom bills affecting access to sex-segregated facilities by transgender people
- laws related to sexual orientation and military service
- laws concerning access to assisted reproductive technology
- sodomy laws that penalize consensual same-sex sexual activity
- age of consent laws that may impose higher ages for same-sex sexual activity
- laws regarding donation of blood by men who have sex with men
- laws concerning access to sex reassignment surgery and hormone replacement therapy
- legal recognition and accommodation of reassigned gender
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