On the 6th of September, what took place was a tumultuous change. What the denizens of this nation had witnessed was an event of such significance and vital consequence, that it would be recorded in the annals of history. It marked a shift from redundant norms of the society, ushering in a new age of acceptance and progress.
And, what it appears to be in a layman perspective is that the Supreme Court struck away at a discriminatory law that criminalised same sex relationships. In effect of what appears to be seen is that section 377 has been ‘scrapped’ by the court. Not quite so. For better understanding and for sake of clarity three misunderstandings need to be cleared up at first.
To start with what the court has effectively [1]done, is not strike down Section 377 completely, but declare parts of the provision that criminalise consensual sexual relationships between adults of same sex, as unconstitutional. In simpler terms for better understanding, parts of section 377 that criminalised same sex relationships have been decriminalised. On a side note, though even oral sex and anal sex which was interpreted as intercourse against order of nature has also been decriminalised, you wouldn’t face any penalty for that too. What however, remains enforceable are the provisions that criminalise bestiality- sexual intercourse with animals, and non consensual sex, both of which would still be considered as criminal acts, evident from the fact that they are non-consensual. It’s obvious it would be chaotic that the entire section had to be scrapped off, as consent will always be a crucial concept and can never ever be disregarded. In short, consensual sex between consenting adults won’t face any penal sanction, but non-consensual acts will invite penal sanction.
Another misunderstanding that appears to be evident from the general reading of public response to the 377 verdict is that most of them or at the very least that they think that it is ‘Article 377’ that has been struck down. A basic clarification needs to be stated however, that it is parts of section 377 that have been decriminalised and not Article 377 of Constitution which talks about the office of the Auditor and Comptroller- things that are not at all related to the penal provision of Section 377 under The Indian Penal Code of 1860. Here’s the difference, a fundamental difference. Section 377 is a provision under a Statute pertaining to criminal acts, and penalties for the same, which is why section 377 used to criminalise sexual intercourse against order of nature, and after this judgement it only criminalises non consensual acts i.e bestiality, paedophilia, etc. Article 377 is part of a legal document which is the supreme source of laws of the land which is the Constitution. The Constitution has a vast scope of applicability but the Indian Penal Code pertains to criminal acts. As far as it is relevant to the discussion on Section 377, we should focus on the fact that it was about decriminalisation of consensual sex and not striking off a provision which pertained to the office Auditor and Comptroller General.
Moving forward from clarifying on what was the judgement actually was about, it is also important to know what the implications are of consensual sex being decriminalised in lives of the queer community. Let’s start with basics. No, to start with it does not mean that suddenly by decriminalising parts of a provision, queer people have acquired right to do anything they want, literally. No, you can’t go ahead and burn your neighbours house, or shoplift that pair of heels from Gucci that you have always loved. No, scratch that off your list if you were even considering that even for moment, to do anything you wanted to do, just because law no longer considers you criminal anymore. There will always be reasonable limits on freedoms given to us. So yes, in the end you aren’t superhuman.
Light things aside, let’s get to practicality of things that affect our lives. One of simplest things you could notice is about visibility and equality. With your sexuality not being seen as something criminal, you are also viewed as equals, and no longer would you face discrimination based on your sexuality. Equality has a significant impact, from employment to everything. To discriminate on your sexuality will now be a violation of the right to equality before the law. That aside, with equality, the queer community would experience greater visibility, live freely without fear of experiencing discrimination. You can challenge discrimination meted out to you in courts of law, and trust me when I tell you- the law is on your side.
But on the real grounds of practicality, let us visit the topic of long term relationships. Especially to queer couples out there wondering about how the verdict will affect their marriage equality. Legally speaking in India, marriage is recognised as a relationship out of which parties involved in the same enjoy rights and obligations. So marriage, from a legal perspective is an institution that is of vital importance because of the rights and duties that accompany this institution are of great benefit- from the right to maintenance, to the right of separation, the right of inheritance to even the right of inheritance to property, and yes, the right to seek redressal against cruelty. The recognition of a relationship in form of marriage in the eyes of law grants parties a series of reliefs and remedies that will be of help in case something does go wrong with the relationship. That’s why marriage seems to matter, because law has given greater ambit of options to this relationship, making marriage seem like a viable alternative form of living together in a committed relationship.
The good news is that you can have relationship, but the bad news is that none of the legislations, pertaining to marriage, be it the Hindu Marriage Act or the Muslim Marriage and Divorce Act, and even in the special Marriage Act, give gender neutral provisions that can accommodate queer couples. In this context, laws pertaining to marriage are heteronormative and can only apply to heterosexual couples. Unfortunately enough, no legislation exists to recognise relationships between queer couples as a form of marriage. What can either happen in the long run is to advocate for a new civil legislation which is gender neutral and is inclusive of queer couples or push for amendments in existing legislations to recognise queer couples. Negatives aside, a sliver of good news is that queer couples can adopt children, however, under the category of a single parent, as yet again, queer relationships haven’t been recognised as a form of marriage and only married couples besides single adults are qualified to adopt children. So registering oneself as a single adult, as one of the partners in a queer relationship can opt for adoption. Legal niceties aside, the adoption agencies won’t have any grounds of refusing you, based on your sexuality, as it is violative of the right to equality and the same can be challenged before the courts as a discriminatory decision by the adoption agency to refuse adoption on grounds of an individual’s sexuality.
The verdict has indeed paved way for significant things that have changed for the better, but activists and lawmakers definitely have to work on a more methodical, inclusive framework to work for a better, queer inclusive society.
[1] (NETWORK., 2018)
