“Majoritarian views and Public morality cannot dictate constitutional rights”- CJI Dipak Misra
A five-judge bench of Supreme Court of India led by Hon’ble Chief Justice Dipak Misra for a criminal writ petition number 76 of 2016 filed by Navtej Singh Johar, while striking down Section 377 of IPC has cleared the discrimination on basis of sexual orientation. It further states that, it is violation of freedom of speech and expression. It is a 495-page judgment with some famous quotes which by, now almost everyone has read. The judgment clearly stated the intention of the court by saying that: -
“We have to bid adieu to the perceptions, stereotypes and prejudices deeply ingrained in the societal mindset so as to usher in inclusivity in all spheres and empowers all citizens alike without any kind of alienation and discrimination”
This shines as a ray of hope that Indian courts can work separately for its citizens in spite of the oppressive pressure from powerful religious bodies. While it took almost more than a decade for the United States to legalize same sex marriage and for people to actually accept sodomy, what’s to see is the time India would take to legalize same sex marriage.
In India, we have a multitude of marriage laws differentiated based on the religion of the couple like the Hindu Marriage Act, 1955. Then there’s the Special Marriage Act which covers non-religious folk/atheists and inter-religion marriages. Perhaps, an amendment to the Special Marriage Act to include more ‘non-mainstream’ partnerships shouldn’t be resisted much since it’s seen as a catch-all legislation.
However, this cannot be considered as the final stage for the equality and fair treatment of the LGBT community. There are still trials and challenges ahead which requires further effort, research and work. Decriminalizing is to be seen as the first step -- for further rights to be secured by the LGBTG community, a more fundamental change in opinion is also required.
The words of judgment stating this are: -
“The first step on the long path to acceptance of the diversity and variegated hues that nature has created has to be taken now by vanquishing the enemies of prejudice and injustice and undoing the wrongs done so as to make way for a progressive and inclusive realization of social and economic rights embracing all and to begin a dialogue for ensuring equal rights and opportunities for the ‘less than equal’ sections of the society.”
What next? Is regularization of prostitution and marijuana the next big step to liberalization? Prostitution is anyways rampant in India, what’s happening is that the touts and pimps (illegal as per the Immoral Traffic Act) are taking huge shares and the women with no choice left, are unable to get any long-term benefits or economically up-lift themselves. The important thing to understand here is that the Supreme Court is the last option to make or amend laws, it is the primary duty of legislature to make, amend or revoke laws.
All of this is easier said than done, bold steps such as legalization of prostitution should be a well-thought-out strategy. It all begins from the very base where educating people is the need of the hour, once this feat is achieved the road to liberalization would appear be constructed.