Indian Judicial Activism: A Strong And Crucial Step Forward For The LGBTQI Community

September 6th marked a historic and long-awaited turn in the chapter of the Indian gay rights movement. The Indian Supreme court struck down a quintessentially age-old and outdated law, which criminalized gay sex. Specifically, as outlined by Aljazeera online, the substance of the struck down law is as follows, “Section 377 – a colonial era law under which same sex relationship is an ‘unnatural offence’ was punishable by a 10 year jail term.” Indeed, the court’s reasoning was firmly based in the pursuance of upholding human dignity and demarcating way from the uninformed traditionalist voice which so sought to subjugate the gay rights cause. Here, “Justice Mishra, reading the verdict stated that ‘Constitutional morality cannot be martyred at the altar of social morality.'” In a cultural milieus, such as India, this divorcing between the legal canon and traditionalist ways of thinking is clearly of great necessity, and an action that will not be tolerated easily by the opposing sects.

The court’s decision has been met by strong praise and support from international and domestic bodies alike. To that end, Twitter feeds have also been exploding with praise and warm regards for the future forward. Unfortunately, the voice of the backward minded have not been completely absent among the celebration. In particular, with “one member of the BJP party commenting that ‘It could give rise to an increase in the number of HIV cases.'” Nevertheless, it appears that the voices of the those who stand in support of this move are standing to the stronger. Indeed, The New York Times article “India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says” noted that “Menaka Guruswamy, one of the lead lawyers representing gay petitioners said that the court’s extension of non-discrimination principles to gay people laid ‘a very powerful foundation…This decision is basically saying you are not alone. The court stands with. The Constitution stands with you. And therefore the country stands with you.'”

In a country where sexual orientations so falling outside the heteronormative umbrella are met with strong criticism and significant prejudice, from the act of disowning a family member due to their sexual orientation and the use of profuse violence, the court’s ruling shall catalyse necessary and awaited change in Indian discourse.  Arguably, the sheer fact that such a petition actually made it to the court in itself shows that progress is indeed being made in India. Their bravery, as demonstrated by their strong will to fight not only for themselves but for the rights and liberties of most, ought to be deeply applauded and, of course, to be inked within the pages of history books with pride and glory.

The practical grassroots implications of such judicial activism have been noted to be limited, as it has been noted that “many gay people still face isolation and persecution, and that the court’s ruling will do little to change life on the ground for millions of people.” While this may so be true, it is important to acknowledge that change takes time. The court’s ruling is a promising and a crucial step in resolving deeply ingrained inequalities in Indian society in order to push for the pursuance of human dignity. It  is thus important to acknowledge that decision handed down by learned and respected judges will inevitably have some weighing upon the paradigms extant in society. It is thus hoped that gay rights activism and the fight for justice will seep into the fabric of Indian society as whole and at all rungs with time. Such will ensure the protection of human dignity for this marginalized sect of individuals.

Nat Kumar