(This story was first published on 5 September 2020. It has been reposted from The Quint's archives to mark three years since Section 377 was read down.)
[This is an exclusive excerpt from ‘Sex and The Supreme Court’ (Hachette, 2020), a book on the landmark judgments passed by the apex court on sex, sexuality and gender, written by the legal luminaries and petitioners at the heart of the cases. The editor of the book and author of this excerpt, Saurabh Kirpal, was the counsel for Navtej Johar, Ritu Dalmia and others in the case that led to the striking down of Section 377 of the Indian Penal Code.]
The Constitution is, so to say, the holy text; it does not merely confer rights on individuals but also has the power to transform the lives of oppressed people. And if the Constitution is the holy text, the judges would be the high priests.
Without a sensitized and empathetic judiciary, the words of the Constitution would be empty promises. It was judicial indifference that resulted in Section 377 being retained on the statute books, and it was the clear presence of empathy that resulted in Section 377 being read down.
Nowhere was the empathetic attitude of the Court as apparent as in the judgment of Justice Indu Malhotra. In the memorable concluding words of her judgment, she said this:
History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.
The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition, part of a range of human sexuality.
The misapplication of this provision denied them the Fundamental Right to equality guaranteed by Article 14. It infringed the Fundamental Right to non-discrimination under Article 15, and the Fundamental Right to live a life of dignity and privacy guaranteed by Article 21. The LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.
Empathy Makes All the Difference
This was the crux of the matter. The Court recognized that homosexuality was not some alien concept, but was part of the human condition and a normal variation of sexuality.
Once sexuality is seen as an integral part of the identity of any person, to criminalize it is to dehumanize a person and to render them as a less than equal citizens. Every right that is available to an average person should also be available to a member of the LGBTQ community.
But these rights have always been there in the Constitution. What changed with this judgment was the empathy that the judges felt with the suffering and discrimination faced by the members of the community.
Empathy enables a person to see the humanity in another person, and that is the first step to accord them the same rights and dignity that we show ourselves. The ability to place yourself in the shoes of another makes you understand how the shoe pinches.
Tempting To Be ‘Cynical’ About Judgment
Homosexual acts are no longer criminal offences as a result of the Navtej Johar judgment. It is tempting to be cynical and say that the lives of the people on the street have been largely unaffected by the judgment and that discrimination against the community is still rife.
Another ground for the cynicism is the belief that the courts cannot be consistently relied upon to rule in favour of the LGBT community when the need so arises.
What such a view fails to appreciate is that few changes in society are instantaneous.
Homophobia was not built in a day and will not disappear with the flourish of a single judgment either. After all, judgments are not magic wands that make homophobes into empathetic individuals overnight.
However, the moral force of the judgment will begin to chip away at the discrimination faced by the LGBTQ community.
‘Won’t Be Pushed Back Into the Closet’
Ultimately, however, the greatest hope for the community lies with the young. The Delhi High Court judgment made the LGBTQ community taste freedom.
The Supreme Court judgment has granted the community self-confidence to come out and demand their rights. Pride marches and social gatherings, speeches and seminars across the country have seen the increased presence of out and proud youth.
They are not likely to be pushed back into the closet, at least not without a fight.
Young people, using the power of social media, will change minds and attitudes of the next generation. In this interconnected world, images of LGBTQ people are no longer overwhelmingly negative.
Across the world, the gay community is making strident progress. India will not be left behind.