The LGBTQ community has got a shot in the arm with the Centre deciding that it will not contest demands to declare as unconstitutional Section 377 of the Indian Penal Code, which criminalises homosexuality. The Centre told the Supreme Court Wednesday that it would leave the decision to the wisdom of the judges, paving the way for the court to decide on the contentious issue.
Earlier when the apex court began hearing petitions challenging Section 377, the court appeared to question the need for the law in these modern times. Saying that no one should influence an adult’s choice of a partner, the court seemed to observe that any law that does so could be considered a violation of fundamental rights. The court drew this view from the March 2018 judgment in the Hadiya case, which held that neither the state nor one’s parents can influence an adult’s choice of partner. The Supreme Court’s observations are in sharp contrast to the same court’s verdict in 2013, when it overruled the Delhi High Court’s landmark judgment in 2009 describing Section 377 as a violation of the fundamental rights guaranteed by the Constitution.
While it is too early for celebration, the LGBTQ community can take solace from the fact even in progressive nations such as the UK, it took years of struggle to come to the conclusion that homosexuality was not an illness that could treated by doctors and psychiatrists. While gay sex was decriminalised in the UK in 1967, Ireland took the step only in 1993. Before decriminalisation, laws dating back to the nineteenth century made it an offence punishable by imprisonment. Gay men lived with fear and faced social stigma. Even to this day gay sex is illegal in many parts of the world.
Section 377 is a law that was adopted when India was a colony of Britain. Although it is rarely used, the Act gives authorities the power to blackmail LGBTQ people and hampers efforts to combat HIV/Aids. At a time when the government is reviewing many such old and anachronistic laws, it is time this law too is buried.