New Delhi, Mar 13 (ILNS) Justice Indu Malhotra, the junior-most and lone female Judge on the Supreme Court’s five-Judge bench, which passed the landmark verdict of decriminalising consensual gay sex under Section 377 of the Indian Penal Code on September 6, 2018, bid an emotional adieu to the apex court today.
Remembering the historic day, Justice Malhotra, the first woman lawyer to be elevated directly to the Supreme Court from the Bar, said, “It was the most moving moment, as the emotions that swept the court room at that time were quite overwhelming. The affected parties had broken down with joy and relief after the verdict was pronounced.”
After Chief Justice Dipak Misra and Justices DY Chandrachud and Rohinton F Nariman had read their opinions at length, Justice Malhotra read out just a paragraph from her 50-page note, saying, “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 through the centuries.”
A loud cheer erupted in the courtroom, which was echoed outside as well. Her presence on the bench signalled a shift in perspective during the hearings as well. Justice Malhotra’s observations on the everyday realities of the LGBTQ community— succumbing to family pressure to marry the opposite sex and leading a life of mental trauma— showed how she added to and enriched the debate. By talking about women who unknowingly end up marrying gay men, only to realise it later, she ensured that she brought attention to even those indirectly affected by the stigma.
Justice Malhotra was the only one to discuss the LGBTQ community’s lack of access to healthcare. Significantly, while the other judges treaded carefully while discussing whether sexual orientation was ‘natural,’ ‘immutable’ or simply based on choice, she simplified it by stating that both homosexuality and bisexuality were simply a variation of sexuality and not an aberration.
Whether it is ‘natural,’ mainstream or not, the LGBTQ community deserves the same rights, Justice Malhotra wrote in her 50-page opinion.
The five-Judge bench of the then Chief Justice of India Dipak Misra, Justices RF Nariman, DY Chandrachud, AM Khanwilkar and Indu Malhotra had ruled unanimously on September 6, 2018 in the Navtej Singh Johar vs Union of India that the application of Section 377 to consensual homosxual sex between adults as unconstitutional, was “irrational, indefensible and manifestly arbitrary”. ILNS/SNG/JR