Delhi / Bhubaneswar / Kolkata / Imphal, September 7, 2018: As members and allies of the lesbian, gay, bisexual, transgender, intersex and other queer communities, we welcome the unanimous verdict of the Honourable Supreme Court of India that has decriminalized consensual sexual relationships among adults of any gender, effectively reinstating the Delhi High Court’s verdict of July 2, 2009 (which had read down Section 377 of the Indian Penal Code).
A five-judge Constitution Bench of the Supreme Court yesterday pronounced judgment on a batch of petitions challenging the constitutional Validity of Section 377. The bench consisted of Chief Justice Dipak Misra and Justices R. F. Nariman, A. M. Khanwilkar, Dhananjaya Y. Chandrachud and Indu Malhotra.
For too long, Section 377 has remained an obstacle for queer communities, used as a tool for blackmail and harassment, as an affront to dignity, and treating queer people as second class citizens. Though it was originally framed to cover all sexual acts of the non-penile vaginal variety, in practice it mostly targetted queer persons. Further, the 2013 sexual assault laws amendment effectively decriminalized consensual oral and anal sex between men and women, leaving Section 377 as applicable primarily to queer people. This was completely unjustified and went against the constitutional tenets of equality.
We, as a community, are deeply moved by Justice Indu Malhotra’s statement: “History owes an apology to those people persecuted by Section 377 for the social ostracism caused by the section”. It is our hope that with Section 377 out of the way we can pursue our struggle for ending discrimination and violence, and advancing civil rights and inclusion for all queer citizens.
At this juncture we must not forget that of the diverse groups that make up the queer spectrum, working class transgender women and same-gender attracted men bear the brunt of violence on the streets, and decriminalization of Section 377 will not render them immune to being rounded up under ‘public nuisance’, ‘immoral trafficking’ and other such laws. Also, lesbian, bisexual, and pansexual women and transgender men continue to face family violence, house arrest, corrective rape, and charges of kidnapping and abduction filed by parents against partners of their daughters. These need to be addressed on a war footing.
As noted by transgender activists Akkai Padmashali and others in their writ petition against Section 377, this law also posed an obstacle to realizing the full benefits of the Supreme Court’s 2014 NALSA verdict on transgender rights. We hope that the current verdict, in reiterating the core principle of self-identity present in the NALSA verdict, will enable transgender persons change name and gender without being subjected to humiliating medical exams and being asked for proof of gender transition surgery.
As stated by Justice Dhananjaya Y. Chandrachud, reading down of Section 377 is the first step. Our work must go on – to make sure that families embrace their queer and gender non-conforming children fully and not regard them with shame and embarrassment; that gender non-conforming children do not get bullied in school; to enable everyone complete education and gain employment; to ensure workplaces are inclusive and safe; to ensure the healthcare establishment no longer regards queer community members as mentally ill; to prevent unethical and unscientific ‘conversion therapy’ attempts by unscrupulous medical practitioners and quacks; to recognize same-gender relationships and those of transgender persons on par with cis man-cis woman relationships.
Laws such as the Protection of Women from Domestic Violence Act, 2005 need to address family violence faced by lesbian, bisexual and transgender people forced into marriages; the Juvenile Justice (Care and Protection of Children) Act, 2015 needs to be amended to include gender non-conforming children in need of care and protection. A full appreciation of the verdict and its implications has to flow through all ranks of law and law enforcement, as the Supreme Court has noted.
With Section 377 out of the way, we anticipate being able to work on these issues with less systemic resistance!
About the main photo: Queer activists in Imphal celebrate the Supreme Court verdict on Section 377 outside Manipur Press Club on September 6, 2018. Photo credit: Randhoni Lairikyengbam