Decriminalised, but much needs to be done on homosexuality

By Satya Prakash

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A year after the Supreme Court’s historic verdict decriminalising gay sex, the lesbian, gay, bisexual, transgender, and queer (LGBTQ) community in India has started to come out of the closet.

But even after a verdict of this magnitude, not much has changed as the largely conservative Indian society and the State appear reluctant to accepting the new reality that is likely to have far-reaching implications.

On the face of it, the verdict is related to legalising homosexual acts between consenting adults in private. However, the manner in which the top court treated the issue of homosexuality, it has gone much beyond the issues of sexual orientation, preference and choice, consent, privacy, intimacy and individual autonomy.

Now, the LGBTQ community is attempting to shift the discourse to equality, non-discrimination, inclusion, identity, dignity and full citizenship rights, including marriage, adoption and succession.

Delivered by a five-judge Constitution Bench, the September 6, 2018, verdict brought cheers to millions of LGBTQ community members who had been hounded for their sexual orientation under Section 377 of the IPC that once made it a punishable.

After examining Section 377 of the IPC, the Bench had declared a part of it as “irrational, indefensible and manifestly arbitrary”, for, it violated right to equality, right to non-discrimination, right to freedom of speech and expression and right to live with human dignity.

The SC read down Section 377 of the IPC to exclude consensual homosexual acts between adults in private from the purview of archaic law.

But oral and anal sex between consenting heterosexual adults in private — which was treated as “unnatural” and a crime under Section 377 IPC — stood de-criminalised by the verdict.

“Morality and criminality are not co-extensive — sin is not punishable on earth by courts set up by the state but elsewhere; crime alone is punishable on earth. To confuse the one with the other is what causes the death knell of Section 377, insofar as it applies to consenting homosexual adults,” Justice Nariman had said rightly.

In May 2015, Ireland legalised same-sex marriage by popular vote. In June 2015, the US apex court ruled that same-sex marriages were legal. Many other nations also allow same-sex marriage.

The LGBTQ community is demanding such rights in India. They can take a cue from the verdict of Justice DY Chandrachud, who said: “Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence….It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations.”

In April this year, the SC dismissed a petition that sought recognition of LGBTQ members’ rights to same-sex marriages, adoption, surrogacy, IVF and directions to the government to permit them to serve openly in the Army, Navy and Air Force. It’s clear that the top court doesn’t want to go beyond decriminalisation of gay sex.

The judgment attempted to undo the stigma attached to homosexuality by asking the government to sensitise its officials, particularly police officials, and bring the community back into the mainstream. But not much effort is visible on this front.

The Transgender Persons (Protection of Rights) Bill, 2019 passed by the Lok Sabha earlier this year provides for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto. But the Bill is yet to take the shape of a law.

It came four years and eight months after the SC directed the Central government and state governments to take steps for the welfare of transgender community and to treat them as a third gender for the purpose of safeguarding their fundamental and statutory rights. Obviously, much remains to be done.