What’s next: Supreme Court says decriminalising gay sex is the first step
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What’s next: Supreme Court says decriminalising gay sex is the first step

After the historic ruling on Section 377, the challenges that lies ahead for LGBT members will be with respect to acceptance in jobs and in family gatherings.

india Updated: Sep 07, 2018 07:05 IST
Ashok Bagriya
Ashok Bagriya
Hindustan Times, New Delhi
Section 377,Supreme Court,Gay sex
LGBT community supporters celebrate after the Supreme Court verdict which decriminalises consensual gay sex, in Bengaluru.(PTI Photo)

The Supreme Court verdict on gay sex, widely acclaimed as historic, has held out hope of equal and fair treatment for members of the LGBT community (lesbian, gay, bisexual and transgender). But as the five-judge bench ended the colonial-era law that banned gay sex between consenting adults, the top court appears to have opened the doors to demand civil rights.

Justice DY Chandrachud, one of the five judges on the constitution bench that read down section 377 of the penal code on Thursday, said the case involved much more than merely decriminalising certain conduct.

Decriminalisation is of course necessary to bury the ghosts of morality which flourished in a radically different age and time. But decriminalisation is a first step,” says Justice Chandrachud’s judgment.

Chief Justice Dipak Misra had made it clear right at the beginning that the top court would restrict itself to the legality of section 377 that penalised gay sex with a prison term.

Chief Justice Misra had then remarked, “The question here is whether section 377 is ultra vires or not. Let us get out of this maze. We cannot now give an advance ruling on questions like inheritance to (same sex) live-in partners, whether they can marry, etc. Those are individual issues we cannot pre-judge now.”

In his separate ruling on Thursday, Justice Chandrachud opened the doors and windows for securing equal rights for members of the LGBT community.

“The state is duty bound to revisit its laws and executive decisions to ensure that they do not deny equality before the law and the equal protection of laws. That the law must not discriminate is one aspect of equality. But there is more. The law must take affirmative steps to achieve equal protection of law to all its citizens, irrespective of sexual orientation,” said Justice Chandrachud in his separate and concurring judgment on the issue.

Senior lawyer Anand Grover confirmed that the judgment did provide the opportunity to agitate larger civil rights.

Saurabh Kirpal, also a senior lawyer, agreed.

“Courts do not give advance rulings on issues that are not before it. But as I see it, this judgment will go a long way in striking down all forms of discriminatory laws against LGBT community,” he said.

The other challenge that lies ahead for LGBT members will be with respect to acceptance in jobs and in family gatherings.

Quoting an instance of a petitioner who qualified for the IAS exams but chose to forgo his dream for fear that he would be discriminated against on the ground of his sexuality, Justice Chandrachud says, “providing support to homosexual clients to become comfortable with who they are and get on with their lives” will be more important.

Clearing the air on the matter, judgment by Justice Indu Malhotra says “Reading down of Section 377 shall not, however, lead to the reopening of any concluded prosecutions, but can certainly be relied upon in all pending matters whether they are at the trial, appellate, or revisional stages”.

First Published: Sep 07, 2018 06:55 IST