A Sea Change

Pride won over prejudice when the Supreme Court recently decriminalized consensual homosexual activity. However, the battle to change over 100 years of old mindset has just begun.

September 6, 2018 will go down as a red-letter day in the fight for choice, one more shibboleth broken in the pursuit of equality before law, giving due accordance to respect for the more natural rather choice. Clouds over the rainbow lifted when in a historic judgment, the Supreme Court quashed its 2013 verdict and decriminalized consensual homosexual sex.

The apex court had attracted global criticism for upholding the 157-year-old colonial law criminalizing consensual homosexual sex five years ago. The September 6, 2018 Supreme Court verdict made the much-needed course correction and created history.

Chief Justice of India Dipak Misra, quoting German writer and thinker Johann Wolfgang von Goethe, said: “I am what I am, so take me as I am.” The verdict, certainly the most well articulated in recent times, watered down Section 377 of the Indian Penal Code, thereby legalizing consensual gay sex. Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community now get the dignity they craved for centuries.

It will be worthwhile to recollect that NGO Naz Foundation had put up a sustained legal fight and won a huge victory in 2009 when the Delhi High Court’s then Chief Justice AP Shah and Justice S Muralidhar altered Section 377. They said that criminalizing consensual sexual acts of adults is “violative of Articles 21, 14 and 15 of the Constitution”. However, abruptly on December 11, 2013, a Supreme Court bench of Justices GS Singhvi and SJ Mukhopadhyaya overturned the Delhi High Court verdict. It was this verdict that the Constitution Bench on September 6 turned around, terming it “retrograde” and “constitutionally impermissible”.

Now the fight for gaining acceptance and changing mindsets starts. The SC judgment is the first step in what promises to be a longer struggle. Legal rights give us the legal sanction that we deserve, but in reality, things move slowly. This can be seen in all spheres vis-a-vis all rights pertaining to property, adoption, inheritance, marriage and so on. In a country where a man and woman can’t hold hands without inviting attention, how will a man and man or two women be allowed intimacy? In popular culture, in theatre or cinema, the minorities are represented in a caricature.

Path-breaking film likes Aligarh on the life of Aligarh Muslim University’s Professor Siras who was driven to suicide for being gay, Kapoor And Sons and My Brother Nikhil have, however, dealt with the subject with sensitivity.

Till the time that we can accept that to be different is not abnormal, and take that in our stride, the problem will remain. LGBTQ is a medical phenomenon, not merely a matter of sexual preference. Nature (December 2017), international journal of science, reported from a study conducted on male sexual orientation that genes play a role in male sexual orientation. A few years earlier, Science reported the works of evolutionary geneticist William Rice of the University of California, Santa Barbara, and his co-workers suggesting that genetic modifications that respond to hormones in the womb may explain the development of homosexuality.

The verdict heralds a bold new era of legal acceptance of LGBTQ rights.