“It is difficult to right the wrongs of history. But we can certainly set the course for future.”[i]
The nation witnessed history being created with S.377 read down and the rainbow flags held high. Homosexuality, a word which, had been refrained from being used in the social milieu for so long, can now be spoken of, with freedom, without breaching any constitutional morality. Through this decriminalisation, “closet” stands opened with this historical judgment, liberating minds from the state of fear, especially of the law, that ultimately builds up a civilised society.
Social Ramifications
In a society wherein, gender fluidity has always prevailed, “closet” became a recourse for the unaccepted section of the society for their acts were considered against the “order of nature.”Shakuntala Devi, brings out the crude reality of the society in her book, through the words, “rather than pretending that homosexuals don’t exist” it is time “we face the facts squarely in the eye and find room for homosexual people.”[ii]Not much had changed from 1977 till 42nd and 156th reports, where the Indian Law Commission stated that Indian society did not consider homosexuality as an acceptable form of sexual behaviour.[iii]
Considering the LGBTQ section as a miniscule section of society, the Supreme Court in 2013[iv] had declared the sexual act as a deviant stroke in the society and upheld S.377. The “closets”, further, began to hide in themselves the silence of violence and pain inflicted both within and without the closet; silence regarding instances of harassment and fear of penalisation.
“[Closets]hide certain socially proscribed sexual desires, certain unnameable sexual acts deemed ‘unnatural’ by the cultural context and law, certain identities which dare not speak their name and certain forms of behaviour which can make an individual susceptible to stigma and oppression.”[v]
However, even during the existence of this “closet”, there have been instances where taboo-ed same-sex unison, did take place. A lesbian couple was given sanction by the local magistrate in Amritsar to live as friends; two nurses in Kerala got judicial permission to live together forever, are some of the instances[vi], none materialised as marriage though. On the other hand, with S.377 in operation, between 2014 and 2016, 4,690 cases were registered; some of which are no longer crimes after the verdict.[vii] This criminalisation led to them being stigmatized and harassed, which often took a toll on their mental health. The same has also been acknowledged in the Mental Healthcare Act, 2017.[viii]
With the judgement redefining and clarifying ‘gender identity’ and ‘sex’ with regard to the innate perception of one, the society takes a leap from the former notion of only two genders ‘naturally’ existing. Further highlighting that social morality of the society changes from time to time, determination of “order of nature” cannot be said to be constant. Therefore, while the earlier society treated the LGBTQ community as an aberration due to their insignificant number, they “are still human beings and therefore they have every right to enjoy their human rights.”[ix]
Legal Implications
The judgment also sets in row legal ramifications along with the change in societal structure. Though it had been argued that with decriminalisation, same sex marriages would become social experiments with unpredictable outcome[x], it cannot be forgotten that marriages are protected by the virtue of the right to privacy under the Constitution. “Right to marry is an inherent right of an individual, regardless of the sexual orientation.” This further sets in a row a series of changes to take place to accommodate same sex marriages in the marriage and divorce laws of the country. The words ‘husband’ or ‘wife’ shall have to be accordingly replaced with the word ‘spouse(s)’. Though the personal laws view marriage as a union between a man and a woman only, same-sex marriages may soon be begun to be accommodated under Special Marriage Act, 1954, which views marriage as a unison of two persons. Moreover, the conjugal rights need a broader interpretation in the light of same sex couples apart from traditional interpretation as the rights of husband and wife. The laws regarding judicial separation and divorce, too, will require subsequent modification.
The laws regarding adoption and inheritance would also undergo changes, as the right of coparceners shall alter in a holistic manner for these same-sex couples. Furthermore, laws and guidelines regarding adoption and child-conceiving methods (surrogacy, IVF) would undergo changes. Apart from these, medical concerns regarding HIV/ AIDS would need to be addressed, an apprehension with the legalisation of homosexuality, shot down by UNHRC by clarifying that criminalisation of homosexuality is not a reasonable means in the prevention of the same.[xi]
The adultery laws will also need to be revised in the light of this judgement. The 1985 view of women being a victim and not the author of crime[xii] in adultery may no more hold value in same-sex marriages where both are women. The maintenance laws with respect to the spouses shall also be modified, since in the present statutes, maintenance lies only between husband and wife which excludes purview of same-sex marriages.
It is pertinent to note that petitioners appealed the Court to read down S.377 and not strike so as to not let non-consensual same-sex adults’ sexual intercourse out of its purview. The rape laws as of present, do not recognise male rape. However, with the decriminalisation, concerns rise as offender(s) may deny homosexuality and confuse an aggressive active behaviour with a masculine behaviour. They may project their homosexual feelings onto the victim.[xiii] With the decriminalisation, such apprehensions need to be considered, pushing further the need for gender neutral rape laws.
The verdict was in reference to S.377 of the Indian Penal Code, which does not automatically get extended to the state of Jammu and Kashmir, governed by its own Constitution and Criminal law, i.e., Ranbir Penal Code.[xiv]
Conclusion
Indian society, at various instances, has been seen to be lagging behind in coping with the widening of parochial outlook towards the homosexuals and accepting them as an ‘innate’ part of the society. The verdict raises umpteen questions before the policy-makers regarding the rights of LGBTQ community. This judgement takes a major leap for society to re-instate life of dignity for the community and their recognition as the part of society. However, this dignity may be farfetched if the laws are not, on urgent basis, made consistent with this miniscule yet as important section of the society. Also, society’s acceptance will also play a major role in the same. An educated and a rational outlook, along with stringent measures against discrimination and harassment, would further work as a catalyst in bringing about effect to the judgement in a more effective way than just theoretically mending the laws.
[i]Navtej Singh Johar v. Union of India, 2018 SCC Online SC 1350.
[ii]Shankuntala Devi, ‘The World of Homosexuals’, 1977.
[iii]Inderjeet Santoshi, “Homosexuality in India: A Controversial Issue”, International Journal of Academic Research and Development, Vol. 1, No. 4, April, 2016, pp. 63-67.
[iv] Suresh Kumar Koushal v. Naz Foundation, (2014) 3 SCC 220.
[v] Supra i.
[vi] Supra iii.
[vii] “Section 377 verdict: Some of these 4,690 cases are no longer crimes”, Live Mint, 7 Sep 2018, available at https://www.livemint.com/Politics/LlqSpXABN7V8mmuHGV2x0O/Section-377-verdict-These-4690-crimes-are-no-longer-crimes.html (last accessed on 13 September 2018).
[viii] Supra i.
[ix]Ibid.
[x] Ibid.
[xi] Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994), decision dated 31/03/1994.
[xii] Vishnu v. Union of India, (1985) Supp.SCC 137.
[xiii] Cohen Addad, “Rape and Homosexuality”, National Center for Biotechnology Information, available at https://www.ncbi.nlm.nih.gov/pubmed/2118217 (last accessed on 13 September 2018).
[xiv] Arti Tikoo Singh, “SC decriminalises gay sex, but J&K LGBTs will have to wait longer”, The Times of India, 8 Sep 2018, available at https://timesofindia.indiatimes.com/india/section-377-pride-not-extended-to-jk/articleshow/65714300.cms (last accessed on 9 September 2018).
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