New Delhi: Tears flowed down the faces of queer people in the Supreme Court on Thursday as the five judges read out their judgments, unanimously decriminalising queer sexual expression in India.
“And we are all of concurring opinion,” said Chief Justice Dipak Misra as he began reading out the unanimous and historic judgment of the five-judge bench to a packed court room.
Petitioners, lawyers, activists and a range of members from the queer community along with their supporters, were all smiles in court on Thursday. People hugged and kissed each other. Others greeted each other across the court room with waves, mouthing words of support. People had brought their partners, friends and parents to witness the historic judgment being passed.
People walked into court feeling hopeful and nearly certain of the outcome. The only thing left, was a confirmation from the bench of what many have already been feeling would be the only possible way for India – decriminalisation. Four days of seemingly positive arguments in July had kept people hopeful.
People walked out of court feeling “overwhelmed” as Ayesha Kapur said and “ecstatic,” as Keshav Suri said. “Great judgment,” said Anjali Gopalan. Kapur, Suri and Gopalan are petitioners in this case. Gopalan and the Naz Foundation had filed the initial petition to read down Section 377, 17 years ago, in 2001. Kapur and Suri are recent petitioners, who docked in their petitions in 2016.
Section 377 is a repressive British-era law that survived for over 158 years, including 71 years in independent India, until Thursday.
The judgment read down the repressive Section 377 of the Indian Penal Code that has criminalised sexual expression between consenting adults, especially of the LGBTQIA+ community.
The law has manifested itself in the form of harassment – by police, families, medical professionals and others – who have backed their discrimination and harassment with this law.
Swami Agnivesh speaking to reporters outside the Supreme Court after decriminalisation of Section 377. Credit: Anoo Bhyuan/The Wire
Pronouncing the judgment
The unanimous judgment was authored by four out of the five judges on the bench.
Misra read his order first, beginning with quotes by famous thinkers and authors, as is his style. In his order he quoted Johann Wolfgang von Goethe, John Stuart Mill and Shakespeare.
“That which we call a rose by any other name would smell as sweet,” he said, reciting Shakespeare. He went on to explain, that what matters are the essential qualities of people and not the names we call people and labels we give.
He concluded by saying clearly that the Supreme Court judgment in 2013 – which re-criminalised queer sexual expression after the Delhi high court had read it down – was now overturned by Thursday’s judgment. The contentions of the 2013 judgment were “constitutionally impermissible” and “fallacious”, he said, because “the framers of our constitution could have never intended that the fundamental rights shall be extended for the benefit of the majority only.”
Misra wrote that “Section 377 IPC is liable to be partially struck down for being violative of Article 14 of the Constitution.” Article 14 of the Indian Constitution guarantees equality before the law.
“Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice,” says his order.
Responding to the larger issue of discrimination and not just the ability to engage in acts of sexuality, Misra wrote: “Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression.”
Justice Nariman briefly went through his order, but importantly said that the government must ensure that the apex court’s judgment is given “wide publicity” on television, radio, print and online. He also said that “all government officials, including and in particular police officials” should be given periodic sensitisation and awareness training.
Justice Chandrachud began reading his order by pithily saying, “The lethargy of the law is manifest yet again.”
He also quoted a Leonard Cohen song from 1992 called ‘Democracy’ which has the line, ‘Ashes of the gay.’
Chandrachud, during the argumens in July also showed some interest in hearing whether the decriminalisation of Section 377 can open the door towards other civil rights for the LGBTQIA+ community. His order drops some hints:
“(ii) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;”
“(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;”
The last judge to read was Justice Indu Malhotra, one of two female judges in the Supreme Court, and who has been recently appointed.
She left the court room ringing when she said, “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.”
She said that this historical injustice has been on account of the “ignorance of the majority” to recognise queer sexual expression and its complexity.
As people filed out of the court room, the landing of the Supreme Court was filled with people exchanging hugs and taking photographs – to commemorate a historic day not just for human rights in India, but for the ideas of dignity, liberty and self-determination for people all over the world.
