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Journal: The 377 judgement, history as it happened

Anu Shrivastava

By the evening of 5th September 2018, the nation knew that five judges of the Supreme Court of India would be deciding if Section 377 of the India was violative of the Indian Constitution. There was also a full court reference scheduled on the morning of 6th September 2018 in memory of two eminent Senior Advocates. This meant that item 1501 in the Chief Justice’s Court Room for pronouncement would be taken up somewhere around 11.30 a.m.

Around 10.15 a.m., as one walks up the stairs towards Court Room No.1, there is already a queue outside the court room. Lawyers who have fought for this for very long, right from the days of Naz Foundation are present, regardless of their involvement, they stand there in solidarity, with great expectations. People are affectionate (it is what the country needs today), happy and hopeful, there is a sense of belonging and joy – that all of us might be able to witness a historic moment. People are going beyond the usual hand-shakes and professional nods, people are hugging and smiling.

There is the usual scuffle to enter the court room, people try and then give up because there is absolutely no space to shuffle feet.

“Maybe we should try once the reference is over, some people might come out then”, says a lawyer who has been instrumental in the proceedings before the constitution bench.

At around 11.15, the reference is over and a few people do come out of the courtroom, while the rest of us wriggle our way in. Once inside, there are more handshakes and hugs, the nation needs it today, more than ever. The court officers take their time to place files and arrange the desks for each of the judges. The judge’s gowns are placed on their chairs, and at 11.30, the judges have taken their seats. There is pin drop silence, except for the scratching of pens. Today, they ensure that the microphones are switched on and audible before the Chief Justice starts:

“We have four opinions, all concurring. I will speak for myself and for Justice Khanwilkar.”

He starts by quoting Johann Wolfgang Von Goethe, and goes on to add “denial of self-expression is inviting death.” Important words are emphasised upon – self-determination, grant of respect to self, dignity, life, liberty and freedom. Live updates continue on WhatsApp groups and Twitter accounts, parallel discussions ongoing about the importance of the obiter dicta in this opinion, while all of us wait with abated breaths with “the Constitution in our hearts” for the operative portion of the order.

Conclusions read out (not entirely and not in seriatem)

“The view in Suresh Koushal, while overruling the Delhi High Court’s decision in Naz Foundation is impermissible.”

Smiles all around, sighs of relief, perhaps some moist eyes (perhaps, courtroom too crowded to notice each person’s eyes). The CJI continues to emphasise upon constitutional morality which cannot be martyred at the altar of social morality.

– Section 377, in its present form, is violative of the right to dignity and the right to privacy. – Section 377 has no reasonable nexus with its object as other penal provisions such as Section 375 and Protection of Children from Sexual Offences (POSCO) Act 2012 already penalise non-consensual carnal intercourse. – Section 377 is violative of Article 14 because LGBTs have been woefully targeted resulting in discrimination and unequal treatment.

“According to the law laid down in Shayara Bano, Section 377 is liable to be partially struck down for being violative of Article 14 of the Constitution.”

The updates continue, people are already rejoicing on social media. It’s a grand day.

Justice Nariman begins next, he keeps it brief. He emphasises upon the decision of the Supreme Court in Anuj Garg as one of the most important judgments on Article 14. He further goes on to add that an important aspect considered by him is the Mental Healthcare Act, 2017 where the Parliament itself has recognised homosexuality to no longer be a mental illness. He concludes that Section 377 as applicable to consenting adults is manifestly arbitrary, wholly excessive and disproportionate.

Justice Nariman goes a step ahead and issues a direction on the Union of India to take all measures to publicise the decision of the court and to sensitise masses and to eliminate the stigma associated with homosexuality. The smiles broadened.

Justice Chandrachud’s opinion, as read out in court, was poetry. He goes on to read some of the most powerful extracts from his judgment which would soon become “viral” on social media.

“What makes life meaningful is love. What makes us human is the right to love” “The lethargy of law is manifest yet again” “Democratic as it is, our Constitution does not demand conformity. Nor does it contemplate the mainstreaming of culture. It nurtures dissent as the safety valve for societal conflict” “We must, as a society, ask searching questions to the forms and symbols of injustice. Unless we do that, we risk becoming the cause and not just the inheritors of an unjust society.” “There must come a time when the Constitutional morality trumps majoritarian notions of assigned gender roles. That time is now.”

He draws a very interesting correlation between the right to love, intimacy, right to privacy and Article 21. The repercussions of the following paragraph do not go unnoticed, and some lawyers stand grinning already:

“State is denying its citizens the right to intimacy. The right to intimacy emanates from an individual’s prerogative to engage in sexual relations on their own terms. Social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary (notions) of sex and gender an receive the requisite institutional recognition to perfect their relationships…”

Nothing more could have been expected or asked from by the Supreme Court. The Petitioners, lawyers, law-students and the nation could not have asked for more. Justice Chandrachud concludes by saying, homosexuals cannot be allowed to live lives as “unshackled felons”. Section 377, insofar that it penalises consensual sexual conduct between adults of the same sex, is violative of Article 14, 19 and 21.

Justice Malhotra starts with an apology – another soon to become viral statement:

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered for centuries”

Outside the courtroom, there are still several people hoping to get inside. Some of them who managed to get live updates are rejoicing already. Something changed then, the air they breathed was less toxic and more “just”. Years of effort had gone into creating today’s history. The number of media vans parked outside the Supreme Court was more than usual. And every lawyer walking, whether inside or outside the premises of the Supreme Court, would have felt a sense of pride in being a part of this profession, for once, atleast.

By 3 p.m., the judgment spanning 495 pages was uploaded on the Supreme Court website. Lawyers could be seen discussing it, sharing it, reading it, asking about it, celebrating it. Continuous celebratory messages on batch groups with parallel discussions on the linkage between love, intimacy and privacy (courtesy, J. Chandrachud) were being shared. Pictures of cakes being cut across offices (corporate firms and chambers alike) to commemorate the day were being shared. Thursday, didn’t need a “throwback” hashtag anymore.

Personal perspectives:

The author was at an arbitration that afternoon before a tribunal comprising of three former judges of the Supreme Court of India. Before the proceedings commenced, there was a brief discussion on the judgment. All the judges agreed with the decision, homosexuality should not have been an offence. The Suresh Koushal judgement was wrong.

In the evening, I messaged some of my friends who were affected directly by this decision. I asked if they were happy, because I sure was. I wanted to share something on their social media profiles and sought permission which was duly granted. Soon thereafter, events transpired where I considered it best to delete my post. But my friend said, “No, not today.”

We live in a nation which is marked by prejudices on the one spectrum, and the “chill phenomenon” on the other. Apart from celebratory posts, one could see the prejudices posts which often get attacked, for good reason. The “chill phenomenon”, which often goes unnoticed, is no less dangerous. It manifests itself in the form of jokes on queer individuals:

“Pubs no longer have stag entry” “Girlfriend nahi hai… Bhai kab kaam ayega tera?”

The law may have declared homosexuality to not be a crime, but are we sensitised as a society yet? No, not today. But this is the inception of a much needed change. It was a historic day, but it was belated history. Soon, we will feel it everywhere, blowing with the wind of change.

I woke up the next morning for a usual miscellaneous Friday at the Supreme Court. The drive which takes about 45 minutes was full of celebrations on FM stations which had already started sensitising people on homosexuality. Even Uber had been celebrating the decision by putting up a rainbow coloured navigation tag on the map. Indian Express had a front-page picture of a homosexual couple expressing their affection, an expression which is now legal. The headlines and cover pages are surely to be archived in history.

The drive felt different today, the air felt free. And I haven’t stopped smiling since yesterday. There is hope, and there is a law – which has seen its ups and downs. The work is not finished yet, maybe not today, but maybe someday.


The author is an advocate working in Delhi.

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