A Win, With A Long Road Ahead: The Supreme Court Repeals Section 377

On the afternoon of September 6, 2018, the Supreme Court of India repealed Section 377 of the Indian Penal Code, almost 160 years after the law came into being in colonial India. Introduced by the British in 1861, the law outlawed ‘unnatural’ acts of sex. The Victorian-era law came into being to outlaw sodomy in the United Kingdom, but was extended to criminalizing same-sex intercourse soon after. The law brought over by the British was repealed by them in 1961, but India continued to have the law criminalizing same-sex intercourse for six decades after that.

The term ‘unnatural sexual acts’ means anything that isn’t peno-vaginal sex. So all sexual acts between members of the same sex come under the term, including certain sex acts between heterosexual people, although the law is rarely ever used against them. The law provided room for abuse against the LGBTQ community, with it being used as a tool to harass and silence them, especially to keep them from reporting sexual crimes for fear of being charged under the section.

This isn’t the first time Section 377 was challenged in court, though. The Delhi High Court in 2009 ruled against the law and questioned its legality, but the ruling was overturned by a two-judge Supreme Court bench in 2013 in Suresh Kumar Koushal vs Naz Foundation. Now, five years on, a five-judge Supreme Court bench headed by Chief Justice of India, Dipak Misra, ruled to repeal the draconian law.

The law provided room for abuse against the LGBTQ community, with it being used as a tool to harass and silence them

Although a significant win of paramount importance and probably a first in providing the LGBTQ community rights and protection in their own state, we still have a very long road ahead of us. The verdict only decriminalizes same-sex intercourse, it doesn’t provide for marriage equality, so members of the LGBTQ community still cannot legally get married.

Section 377 does not deal with marriage. Marriage in India is only still legal between members of the opposite sex. Marriage-equality is a separate issue, to achieve which we still have a long way to go, with considerable opposition from religious groups and the sitting government being inevitable, especially considering the union government specifically asked the court to refrain from ruling in this regard.

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The discrimination in the legal realm against the LGBTQ community doesn’t end here. The Gay Panic Defence continues to be a valid legal defence that is essentially used by heterosexual people for a lesser sentence in cases of simple or aggravated assault against members of the LGBTQ community or for their killing. The defence essentially says that sexual advances by homosexual people can cause temporary insanity and increased aggression in straight people that can lead to them assaulting or even killing them. The defence will continue to be a valid legal defence, even with the scrapping of Section 377, because the defence was never birthed from the criminalization of same-sex intercourse and homosexuality, but by a culture of homophobia and non-conformity and anything but heteronormativity being met with violence.

The discrimination in the legal realm against the LGBTQ community doesn’t end here

Other legal issues like, property rights, being disallowed from adopting and using surrogacy as a means to have a child, are all issues that will continue to exist even without Section 377.

Issues like corrective rape also continue to plague the LGBTQ community because they don’t subscribe to heteronormativity or are non-binary. In instances of corrective rape, individuals coming out as anything other than heterosexual or revealing their non-binary identities are subjected to rape, usually by family members of the opposite gender to ‘make’ the victim heterosexual, to ‘cure’ them of their homosexuality, or to rid them of the non-binary identity.

Apart from this, the social stigma and vilification LGBTQ people are subjected to is unlikely to change with this verdict alone. The verdict has come under severe scrutiny and has received extensive opposition in the name of religion, morality, and decency. Coming out in India is still met with violence, discrimination, and hate. This verdict is not very likely to change that immediately, but it may force us to reconsider our collective take on homosexuality and our toxic attitude towards the LGBTQ community and how we have always oppressed them and systematically taken away their rights and made them feel unsafe and unprotected in their own state, by means of its laws.

Homosexuality is also still viewed as a mental illness by many, even though this claim has been rubbished by psychiatrists world over and even the Indian Psychiatry Association. Even after the verdict, a lot of individuals, and unsurprisingly, a disproportionate number of religious leaders have criticized the verdict and the Supreme Court for taking this stance by claiming homosexuality is a mental illness.

They also claim that the decriminalization of same-sex intercourse will corrupt children and encourage homosexual tendencies among the masses, especially the youth. All of these dated claims have been rubbished for decades now, but our collective opinion doesn’t seem to have shifted much, with our beliefs still inspired by arbitrary and dated ideas of morality imposed upon us, which a lot of people believe should be allowed to take precedence over the right to life and being the members of the LGBTQ community must have in a democratic state.

the social stigma and vilification the LGBTQ is subjected to is unlikely to change with this verdict alone

We are a culture that calls homosexuality vile, a deviant behaviour, and a form of perversion. By vilifying homosexuality and the LGBTQ community, we have managed to infringe upon their rights and diminish their personhood for 157 years, but no more. This verdict shall be the beginning to put an end to the systemic oppression and legal violence against those that are different, against those that don’t conform, against those that wish to live their truth without being belittled and threatened, and against those that refuse to have their personhood diminished and their right to life taken away.

The verdict, though met with hate by many, is still a cause of celebration, because this historical right granted to the LGBTQ community will shape their lives, future experiences, and stories for the better, and ultimate maybe even alter our collective attitudes, allowing us to incorporate diversity and acceptance, and all this triumphs any hate this verdict can possibly be met with.

India rewrote her history today, we took a step forward, and though a long road lies ahead of us, this was no small feat. This step today will be responsible for birthing any and every future change in this regard, this step will propel us in the right direction of change for the future, that will lead us to a future that holds acceptance, justice, respect, and equality for all, and not one that is built on the flimsy pillars of heteronormativity, conformity, morality, dated beliefs. While we rejoice, let’s also remember that this verdict is the result of years of work and sacrifices made by millions of people in a million big and small ways. We haven’t won yet, but this is a victory, and only the first of many that the future holds.

Also read: Beyond 377 In Photos And Tweets: Our Panel Discussion On Queer And Trans Rights

Featured Image Source: Bar and Bench

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