From Bedrooms To Courtrooms

The apex court’s verdict on Section 377 is poised to bring tectonic shifts in Indian society, but subtly

- Pragya Singh

THIS fortnight-long pause must feel like an endless period of waiting for India’s lesbian, gay, bisexual, transgender and queer (LGBTQ) community— nothing short of a cusp moment in their history. The Supreme Court has just finished hearing a batch of petitions asking for Section 377 of the Indian Penal Code (IPC) to be “read down”. LGBTQ groups are waiting to find out if the court will hold that consensual same-sex intercourse is legal. If this happens, LGBTQs will have won the right to seek legal recourse against everyday oppression and form associations to raise grievances. As Section 377 makes all homosexual acts illegal, these rights are at present denied to LGBTQ persons.

The line of questioning adopted by the judges while hearing the case has left LGBTQ activists sanguine. For instance, Justice Rohinton Nariman noted that the court will “not wait for majoritarian governments to enact or delete” laws that violate fundamental rights, while Justice D.Y. Chandrachud said that if same-sex intercourse is decriminalised under Section 377 on constitutional grounds, many other civil rights would necessarily flow to LGBTQ persons.

As a result, there are cautious whispers within (and outside) LGBTQ groups that the future may bring more than just the right to consensual sexual activity of one’s choice within bedrooms. Though the Supreme Court had in 2013 struck down the 2009 Delhi High Court’s “reading down” of Section 377, its landmark privacy judgment of August 2017, inter alia, opined against Section 377. This May, the apex court also put its stamp of approval on live-in relationships. A convergence of tangentially related events seems to have created an enabling atmosphere of legal thinking that favours a certain liberalism, but will that extend to conferring on LGBTQs the same legal rights as live-in heterosexual couples?