Free Press Journal

Despite ‘supreme’ verdict on Section 377, there’s still a long road ahead


The Supreme Court ruling is just the beginning for LGBT rights, writes Narsi Benwal

Unlike the United States Supreme Court which took at least 17 years to decriminalise consensual sex between homosexuals, the Supreme Court of India corrected its precedent ruling of criminalising gay sex within four years. The landmark and historic ruling of the constitutional bench, headed by the Chief Justice of India, has been lauded across the country.

In their concurring opinion, the five judges have not only recognised the right to a dignified life of gay and lesbian citizens of India but have set the stage for more historic rulings for the LGBT community.

“It is difficult to right the wrongs of history. But we can certainly set the course for the future” – this observation of the SC is indeed significant.

The LGBT community celebrated its victory on Thursday, September 6, after the ruling was pronounced, but it was just their first step to acceptance in society as the community still has a long path to conquer. Now, it has to struggle further but hopefully not for decades as the landmark pronouncement of the apex court has paved the way for the betterment of the community.

The 493 page judgement, states, “Gays and lesbians, transgenders and bisexuals continue to be denied a truly equal citizenship seven decades after Independence. The law has imposed upon them a morality which is an anachronism. We, therefore, declare that LGBT groups are entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.”

The five judges, however, have restricted themselves solely to the question of decriminalising consensual sexual activities between adult, consenting members of the LGBT community. It only grants relief from being prosecuted under the criminal law, if caught indulging in “unnatural sexual” activities.

However, the larger issues for the interests of the community have been conveniently ignored in the ruling. One such reason might be the issue of “jurisdiction”.

Though the apex court has recognised the rights of the community, it has not shed light on whether there is a need to amend any existing laws so that members of the LGBT community can lead their lives in a normal manner just like the heterosexuals.

For instance, the court has recognised gay rights but has been tight lipped on gay marriage or same-sex marriage. This might be because of the absence of any laws to permit such marriages.

In the Indian legal fraternity, a marriage has been defined as a relation between a man and a woman. There is no mention of a marriage between a man and a man or a woman and a woman.

Further, there are no laws which can enable such couples to adopt children, just like the heterosexual couples. There is no provision either for such couples to claim rights on properties under the Succession law.

For a better understanding of the issue, Justice (retd.) Vidyasagar Kanade of the Bombay High Court, says the community has a long way to go to attain all its rights.

“Just like same sex marriages are permitted abroad, the same is not yet allowed in India. Even the SC judgement has no mention on any of these lines as there is no law in force yet to enable such couples to lead life like heterosexuals,” Justice Kanade said.

According to Kanade, this is the first battle that the community has managed to win.

“There is a long way ahead. This is just the first step. Until Parliament enacts a proper law to deal with all these issues of this community, it will not get what it seeks,” Justice Kanade said.

To conclude, the judgement has only focused on the criminal aspect and has relieved the community from being prosecuted under criminal laws.

The homosexual community has to struggle further to ensure treatment at par with heterosexuals.