Camera: Garvita Khybri
Editor: Rahul Sanpui
History was made. On 6 September 2018, the Supreme Court of India delivered a landmark judgment, decriminalising a 157-year-old British-era law that criminalised even consensual homosexual relations.
It is no longer a criminal offence to be gay in India!
Four days of hearings on the matter were held from 10-17 July 2018. The Constitution Bench, comprising Chief Justice of India Dipak Misra as well as Justices Rohinton Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra delivered a unanimous judgment.
“First step towards vanquishing enemies of prejudice and injustice has to be taken”, read the judgment. “We must get rid of prejudice and discrimination. Concept of constitutional morality creates responsibility of State to protect. Fidelity to constitutional morality must not be confused with popular sentiment.”
But two years into the judgment, what has changed for the community on ground?
“Basic things such as exclusion from livelihood sources other than begging and sex work, homelessness, lack of access to health care. These continue to be some basic things that plague the majority of people in our country but especially people from marginalised genders and sexuality.”Bittu, Member of the Community
Despite the decriminalisation of homosexuality, the community feels that the laws don’t protect them in an effective manner.
“Like, we know that if a woman is raped, she can file a case... there are provisions for her. But if a gay person is raped by a man, can he go somewhere to complain? I have not seen any such law anywhere. Similarly, for transgender (people), I have not seen any such law. There are people who are forced to have sex, we are not able to file any complaint about rape. So, such cases are still happening, nothing much has changed on the ground level.”Deepak, Member of the Community
The Vidhi Centre for Legal Policy’s ‘Queering the Law: Making Indian Laws LGBT+ Inclusive’ is a step forward. It charts central laws that discriminate against LGBT+ persons by operating in the male-female binary and/or on the assumption that a relationship can only be between men and women. It makes a case for legal inclusion in such laws and engages with questions of what the way forward for inclusion might be.
“Either discrimination can be because of invisibility of the community because they only recognise the male-female binary or it can also be because they don’t recognise non-heterosexual conduct only because most laws are made with the assumption that only a heterosexual relationship is a legitimate relationship. So, they don’t recognise non-heterosexual relationships. So, even when you don’t see gender in the law, it will still discriminate against the LGBT+ community’s people. So, my sense would be to make them always inclusive. But it’s not as simple right because you just can’t add people to these laws. You need to re-imagine them completely.”Akshat Agarwal, Lawyer
The 6 September 2018 judgment had decriminalised consensual homosexual relationships in India. Let's hope that equality in all forms reaches the community soon as well.