In a defining moment in the country’s history, in a long, tenuous and continuing journey to equality, in a win for LGBTQ and human rights, the Supreme Court struck down Section 377 of the Indian Penal Code, decriminalizing homosexual relationships between consenting adults.
A five judge constitution bench headed by Chief Justice Dipak Misra, the court stated that the 158-year old colonial era law violated the right to equality. He stated in part, “We have to vanquish prejudice, embrace inclusion, and ensure equal rights”, citing the law as irrational, indefensible and manifestly arbitrary.
As the judgment was read out, celebrations broke out across the country. Foreign dignitaries and organisations like the United Nations offered their support and congratulations on the verdict while also looking forward, stating in part, “The UN in India sincerely hopes that the court's ruling will be the first step towards guaranteeing the full range of fundamental rights to LGBTI persons”.
Corporate India did not miss out on the celebrations. Google displayed the rainbow pride flag on its homepage; Facebook and Youtube changed their display pictures representing the pride flag as well; while other companies such as Swiggy, Microsoft, Zomato, Uber etc showed their support in unique ways with clever slogans and pictures.
Corporate India now feels unshackled to make their workplace inclusive. In lieu of section 377 companies didn’t extend benefits such as medical insurance, retirement, maternity and adoption benefits to LGBTQ employees.
Somna Singh, Bank of America Merrill Lynch, Head of HR stated, “We are steadfast in our commitment to our LGBTQ employees through progressive workplace policies and practices.” Companies across the country will need to legally examine the judgment to see how far they can go in providing benefits that other employees have and if certain benefits aren’t permissible by law.
One of the petitioners in the case against Section 377 is Keshav Suri; executive director of Delhi-based Lalit Suri Hospitality Group expressed his happiness at the verdict, in an interview to Livemint stating in part, “I’m ecstatic. Today finally people like me …the LGBTQ community are no longer in the fringe or in the darkness. We are finally out of the shadow”.
#WATCH Celebrations at Delhi's The Lalit hotel after Supreme Court legalises homosexuality. Keshav Suri, the executive director of Lalit Group of hotels is a prominent LGBT activist. pic.twitter.com/yCa04FexFE— ANI (@ANI) September 6, 2018
In the interview he mentions that companies used 377 as an excuse against hiring transgender people in the past, saying in part, “Now they don’t have that excuse anymore. In Lalit, we have inclusive HR policies including medical benefits”. Some companies will move forward through having and fostering an inclusive workplace. One of the reasons organisations push for an inclusive policies is because of the benefits associated with a diverse and inclusive workforce.
One caveat to the ruling is that is does not apply to Jammu & Kashmir. This is because the state is governed by its own constitution and criminal law; the Ranbir Penal Code (RBC). It has its own version o Section 377 that criminalizes same sex relationships. The RBC was framed along the line o the Indian Penal Code during colonial rule.
The state has not much of a voice on the fight for LGBTQ rights primarily because of religious and cultural reasons and the Islamist militancy presence since the early 90’s.
However, a scholar from Kashmir University, Dr. Ajaz Ahmad began working on issuesaffecting the transgender community and in 2017 published his book, “Hijras of Kashmir – A Marginalized Form of Personhood”. In speaking to the Times of India, he said in part, “It is of huge importance to us because we will now be able to file a petition seeking its extension to J&K too”.
The next steps are many in this journey. The court’s verdict does not include same sex unions or marriage or other civil benefits. For some, section 377 represented more than just a law about sexuality. As Akhil Kang, Delhi based Human Rights lawyer, in a column for Firstpost puts it – “The fight for love is as much as about caste, class and religion as it is about gender, sexuality. How do we draw lines between all of them? This overwhelming, sad and tumultuous 377 journey becomes as much about upper caste lawyers desperately trying to represent what desi/Indian queer is”.
“The fight for love is as much as about caste, class and religion as it is about gender, sexuality. How do we draw lines between all of them? This overwhelming, sad and tumultuous 377 journey becomes as much about upper caste lawyers desperately trying to represent what desi/Indian queer is”.
The government has stayed largely silent on this issue. Though, the government’s lawyer during an earlier Supreme Court hearing stated that the government would accept any ruling of the court. The public figures of the fight against Section 377 in the courts were the petitioners - dancer Navtej Jauhar, journalist Sunil Mehra, chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri and business executive Ayesha Kapur.
Comments and reactions from LGBTQ activists, to whom this victory belongs, have one thing in common – it’s a big step forward but not the last. While recognition of their sexuality and identity is now not criminal, the next step would be acceptance in society. For some, it might still be a struggle, but the verdict is helpful. As many have stated, the struggle is a long one and will continue until there is liberation.
More columns by Varun Sukumar