The Women and Media Collective applauds and celebrates the long years of committed struggle that led to the reading down of Section 377 of the Indian Penal Code that criminalized homosexual behavior between consenting adults. This outcome is the result of a long legal struggle, marked with a succession of petitions which were relentless in their effort to bring about legal and social change, despite significant set backs.
Chief Justice Dipak Misra noted using Section 377 to criminalise gay sex is irrational, indefensible and manifestly arbitrary as a five judge bench of the Indian Supreme Court unanimously struck down its discriminatory provisions on 6th September 2018,
This historic judgment finally roots out an archaic Victorian moral provision many British colonies were forced to live with. As in Sri Lanka, although the State consistently argued that Section 377 was not used to prosecute LBTIQ persons, its presence in the Indian Statute books paved the way for systemic discrimination and harassment of LGBTIQ persons, both by the State and society at large.
The Indian Supreme Court did not merely strike down a piece of bad law inherited from the British. It also affirmed the fundamental right of self determination, choice and expression with Chief Justice Misra, noting “..it has to be appreciated that homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality”.
The bench held that “Society cannot dictate the expression of sexuality between consenting adults. That is a private affair.” It reiterated that Constitutional morality superseded majoritarian morality or any culture or tradition. Justice Rohinton Nariman stressed there was no need to persist with a rationale for Section 377, based on Victorian morality that was long gone. The rhetoric of culture and majoritarian sentiments is often raised by the State and sections of the public who oppose decriminalization in Sri Lanka. In its judgment, the Indian Supreme Court has provided us with the gift of language and legal and moral persuasion to overcome such prejudices.
Justice Indu Malhotra also evocatively said “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”.Section 377 denied freedom and rights to LGBT community, who, she said, had been forced to live in fear on account of the ignorance of the majority.
Going beyond the mere letter of the law, to its spirit and heart Justice Dhananjaya Chandrachud said “What makes life meaningful is love. The right that makes us human is the right to love. To criminalize the expression of that right is profoundly cruel and inhumane”.
This landmark judgment we hope will be a precedent for the region and will be the impetus for Sri Lanka too to repeal similar shameful colonial era provisions in our Penal Code as a crucial step in guaranteeing the full range of fundamental rights to all LGBTQI persons in Sri Lanka.