This article has been co-authored by DU research fellow Ramanand and Gauri Pande of Center of Policy Research & Governance.
September 6, 2018, will forever be remembered as the day when India truly adopted equality by safeguarding the constitutional right to equality of homosexuals.
It is a well-known fact that the LGBTQ community has suffered various forms of discrimination for decades.
The social stigma attached to the notion of homosexuality has made it impossible for the members of the community to come out and claim their identity.
Section 377 of the Indian Penal Code, which has been in our society since the colonial era, has been partially struck down by a five-judge bench headed by the Chief Justice of India, Dipak Misra.
According to the verdict, the denial of self-expression is no better than death.
"Section 377 is irrational, indefensible and manifestly arbitrary," the order read. The CJI said that the section would not apply to homosexuals and other sexual minorities but the section hasn't been completely expunged from the Constitution and will still apply to bestiality and sexual acts without consent.
Delivering the order, Justice Rohinton Fali Nariman asked the Centre to work upon disassociating the stigma attached to homosexuality.
The excruciating battle
The LGBTQ stands for lesbians, gays, bisexuals, transgenders, queers. The fight against Section 377 has been going on since ages. All these years, the constitutional right to equality was only applicable to those belonging to the heterosexual men and women.
The LGBTQ people were made to suffer physical assault, mental torture and social ostracism merely for being who they are. A sense of guilt was thrust down their throats making them feel like a social misfit.
For 68 years, since the Constitution came into effect, homosexuals have been treated as if they weren't a member of our society and there is no place for them in it.
The NALSA versus Union of India judgment, delivered in April 2014, introduced several theoretical changes to India's social order such as recognising the third gender and underlining that fundamental rights are applicable to them in the same manner as they apply to men and women.
Non-recognition of the third gender in criminal and civil statutes such as marriage, adoption, divorce etc., was declared discriminatory. Even though the judgment promoted equal rights for transgenders on all possible fronts, the Transgender Protection Bill of 2016, failed miserably to abide by it in protecting the rights of the community.
For starters, it defined transgender as "someone who is neither fully male nor fully female". In addition to that, the bill stated that there will be a District Screening Committee, which will determine the authenticity of the supposable sexual orientation of the person in question, and once the screening committee has approved someone, they can be considered a transgender legally.
This process of determining the genuineness of sexuality certainly raised the possibility of the existence of some grounds of rejection, which thereby violate Article 14 (Right to Equality) of the Constitution.
It is truly sad that a community faced such high levels of discrimination and nothing was done about it until now. Discrimination is a germ, which doesn't just pollute the legal aspects of a society, but also puts a blemish on the humanitarianism of the entire nation.
Everyone is born equal and, hence, no human being possesses the right to discriminate against the other on any basis, be it caste, creed, colour or sexuality.
After the remarkable stand taken by the SC bench, it is safe to say that India is making quick progress with time, and this gives hope that the stigma associated with homosexuality will be eradicated too.
The development calls for celebration as it has ushered in an era of equality and inclusivity. This celebration, therefore, must not just include members of the LGBTQ community but all supporters of equality around the world.
The humiliation and vilification of homosexuals must end now.
After the verdict was delivered, Justice Indu Malhotra said that we owe an apology to the entire LGBTQ community for the years of stigma they faced.
While the verdict is about a change in the law books, it is time to make it meaningful by changing the mindsets that are uncomfortable with sexual identities that don't fit into neat brackets.