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India’s top court legalises same-sex relations

September 07, 2018

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BANGALORE: Transgender rights activist Akkai Padmashali (in orange) celebrates with other members of the LGBT community the court judgement on Thursday.—AP
BANGALORE: Transgender rights activist Akkai Padmashali (in orange) celebrates with other members of the LGBT community the court judgement on Thursday.—AP

NEW DELHI: A constitutional bench of India’s Supreme Court on Thursday legalised same-sex relations between consenting adults, but the move poses a challenge in a country where social mores prohibit heterosexual ties across hidebound castes or between religious communities.

The five-judge bench termed the court’s 2013 judgement constitutionally impermissible. The Hindu revivalist Rashtriya Swayamsewak Sangh welcomed the decriminalisation of homosexuality though it does not encourage the practice.

Pro-Hindutva MP Subramanian Swamy reportedly termed homosexuality a genetic disorder and said that medical research must be done to rectify it.

“Of course what happens in someone’s private life should not be of anyone’s concern, neither they should be punished. It is basically a genetic disorder, like someone having six fingers. Medical research must be done to rectify it,” he was quoted as saying by ANI.

Similar views have been voiced by Baba Ramdev, a yoga teacher close to Prime Minister Narendra Modi. The guru says he has a cure to treat homosexuality.

A pro-Hindutva legislator terms homosexuality a genetic disorder and calls for medical research to rectify it

“It is the American game. Soon there will be gay bars here where homosexuals can go,” Mr Swamy said. “HIV will spread. So, after looking at the consequences, I hope the next government will move a seven-judge bench to set aside this five-judge bench order.”

The hardline Hindu chief minister of Uttar Pradesh had introduced “Romeo squads” vigilante groups targeting young men and women walking together or talking in public places.

The apex court was hearing a clutch of petitions challenging criminalisation of homosexuality. The five-judge bench was

headed by Chief Justice of India Dipak Misra and comprised Justices R.F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra.

The verdict followed five petitions moved by dancer Navtej Johar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur.

During the four-day hearing earlier this year, the Modi government had said it would not contest the petitions, and left the decision to the “wisdom of the court”.

As the Supreme Court decriminalised homosexuality, Joyita Mondal, a transgender judge, was joyous but also looking beyond Section 377 and the broader issues of adoption, employment and elections concerning the LGBTQ (lesbian, gay, bisexual, transgender and queer) community.

“Though India received independence long back, we got ours today,” said Judge Mondal, a Lok Adalat judge in North Dinajpur district’s Islampur in North Bengal.

She said she wished to adopt a child while underlining it was about time sexual minorities were granted rights on a par with other citizens.

The judge also said the next step should be reservation in employment for the transgender community and contesting assembly and general elections.

Chief Justice Dipak Misra, Justices Rohinton F. Nariman, A.M. Khanwilkar, D.Y. Chandrachud and Indu Malhotra gave four separate but concurring judgements.

Here is what they said:

Justice Misra and Justice Khanwilkar: “I am what I am. So take me as I am.”

They said: “Identity is pivotal…Many sections continue to suffer exclusions due to stereotypes…We can’t call ourselves developed society unless they are freed from these shackles…LGBTQ community possesses same rights as others. We have to vanquish prejudice, embrace inclusion, and ensure equal rights.”

The two judges said: “Only Constitutional morality and not social morality can be allowed to permeate rule of law…Sexual orientation is one of the many natural phenomena…Any discrimination on basis of sexual orientation amounts to violation of fundamental rights.”

Justice Nariman said: “Homosexuals have right to live with dignity. They must be able to live without stigma.” He asked the government to give wide periodic publicity to the judgement so that stigma is reduced and finally removed.

Justice Chandrachud said: “Human sexuality cannot be reduced to a binary formulation and decriminalising Section 377 is but a first step.”

Justice Chandrachud asked medical community to sensitise itself about rights of LGBTQ community. “Instead of trying to change what is not a disease, counsellors must wake up to these rights…Who decides what is natural and what is unnatural? Can state be allowed to decide? Denial of right to sexual orientation is denial of privacy rights.

Courts have task not to allow to push citizens lives into obscurity because of some colonial law…A colonial legislature made section 377 criminal…It is an anachronistic colonial law…It has confined a group of citizens to the margins…It rests on deep-rooted gender stereotypes.”

Justice Indu Malhotra, the only woman judge on the bench:

“History owes an apology to members of the community for the delay in ensuring their rights. Section 377 will, however, continue to govern non-consensual sexual acts, carnal intercourse with minors and acts of bestiality.”

Millions celebrated the verdict across the country. The verdict came at a time when two senior US secretaries were visiting New Delhi.

Published in Dawn, September 7th, 2018