The Supreme Court on Tuesday referred a batch of curative petitions against Section 377 of the Indian Penal Code, a colonial-era provision criminalising consensual sexual acts of Lesbian, Gay, Bisexual and Transgender (LGBT) adults in private, to a five-judge Constitution Bench for a possible back-to-roots, in-depth hearing.
A three-judge Bench of Chief Justice of India T.S. Thakur and Justices Anil R. Dave and J.S. Khehar gave credence to arguments that the threat imposed by the provision amounts to denial of the rights to privacy and dignity and results in gross miscarriage of justice.
Chief Justice Thakur said the petitions pose several questions with “constitutional dimensions of importance” while dictating the order of reference to a Constitution Bench he would be setting up shortly. This Bench neither admitted the petitions nor issued notice to the government, leaving it to the future Constitution Bench to do so, if found necessary.
Rebelling against its own procedural conventions in dealing with curative pleas, the Supreme Court indicated its openness to re-consider the constitutionality of Section 377 with new eyes.
Chief Justice Thakur told senior advocate Anand Grover, appearing for petitioner Naz Foundation, that the new Bench may not limit itself to the narrow confines of the curative law — the Curative Bench will only entertain if petitioners prove that its review verdict violated principles of natural justice and the judges were biased — and opt for a comprehensive hearing of the arguments placed for the protection of the dignity and rights of the LGBT community.
The indication came when Mr. Grover asked whether the three judges would also be present on the “curative bench.” As per the apex court’s Rupa Hurra judgment in 2002, the Bench considering curative pleas should necessarily have the three top judges of the Supreme Court.
In his opening argument to the Bench, senior advocate Kabil Sibal submitted that a person’s sexuality was his or her most precious, most private of rights.
It’s no mental disorder: petitioners
In his opening argument on Tuesday to the three-judge Bench of Chief Justice T.S. Thakur and Justices Anil R. Dave and J.S. Khehar, hearing a batch of curative petitions against Section 377 of the Indian Penal Code, senior advocate Kabil Sibal said: “Any provision that penalises an adult person’s expression of consensual sexuality in private is significantly unconstitutional.”
There was galaxy of senior lawyers representing the petitioners, including senior advocates K.K. Venugopal, Ashok Desai, Shyam Divan, Anand Grover and Colin Gonsalves.
The open court hearing was the fruit of two years of waiting since the batch of eight curative petitions was filed in March 2014 by parents, civil society, scientific and LGBT rights organisations against a January 28, 2014 apex court verdict dismissing their review petitions on the ground that Section 377 is Constitutional and applies to sexual acts irrespective of age or consent of the parties.
The Review Bench in January 2014 had agreed with its original appeal judgment on December 11, 2013, setting aside the historic and globally accepted verdict of the Delhi High Court. The High Court had declared Section 377 unconstitutional, and said it was in violation of the fundamental rights enshrined in Articles 14, 15 and 21 of the Constitution.
The High Court, led by its then Chief Justice A.P. Shah, had read down Section 377 to apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors.
“Your past judgments not only affect the present but will bind future generations to a life of indignity and stigma,” Mr. Sibal submitted. “If not corrected now, your verdicts may result in ‘immense public injury,’” he argued.
Mr. Sibal, joined by Mr. Grover, appearing for petitioner Naz Foundation, argued that the apex court struck down the 2009 Delhi HC judgment despite the Centre not challenging the lower court’s verdict.
“The matter is of such importance that it should go to a five-judge bench,” Chief Justice Thakur responded.
Meanwhile, when Chief Justice Thakur asked if there was anyone opposing the petitioners, the Apostolic Churches Alliance made it clear that “homosexuality is an abomination in the Bible” and decriminalisation of Section 377 would lead to legalisation of homosexuality. It argued that such a situation would make the Prevention of Immoral Trafficking Act redundant. The petitioners have contended that homosexuality was not a mental disorder, but a normal and natural variant of human sexuality. Even the International Classification of Diseases (ICD-10) of the World Health Organisation (WHO) and the Diagnostic and Statistical Manual (DSM IV) of the American Psychiatric Association, the globally accepted standards for classification of mental health, no longer considered non-peno-vaginal sex between consenting adults as mental disorders.
1. Sexuality is not something that should be legislated against
In the context of Indian culture, sexuality was considered fluid with references to alternate sexualities being part of the storylines of the Mahabharata and Ramayana. Myths of gods becoming goddesses and homoerotic sculptures on the temples of Khajuraho suggest that Ancient India wasn't so homophobic.
For those of you who do not understand, let's say India criminalises sex between straight people (And why not? Considering the number of rape cases and overpopulation). How would you feel if judges were deciding whether your private life was legal or not? It's time for the constitution to get the hell out of people's bedrooms and stop targeting the love lives of a minority.
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2. Important members of the Commonwealth have decriminalised it ages ago
Sec 377 of the IPC was introduced by the British government, which subsequently introduced it to other colonies around the world. Currently, 32 members of the Commonwealth do not criminalise homosexuality, but a majority still does.
It's the more developed nations like Canada, the UK and New Zealand that do not criminalise it and have legalised same sex marriage. Wouldn't it show India in a more progressive light if Sec 377 was dropped? It would reaffirm the Commonwealth's commitment to guaranteeing all its citizens basic human rights.
Hanging on to the archaic law is just a reaffirmation that we aren't quite done with our post colonial hangover.
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3. It labels innocent citizens as criminals
Having an alternate sexuality does not make people inferior and it definitely shouldn't make them feel like they are doing something wrong. Nobody likes to be victimised just because of who they are.
4. It won't end discrimination but it is definitely a step in the right direction
There are no laws protecting gays and lesbians from discrimination at the work place or laws that allow them to marry their partner of choice. If Sec 377 is abolished, it opens a window of acceptance and achievement for the LGBT community. Developed nations were fighting for their right to sexual freedom in the '50s, 60s and 70s before legalising same sex marriage all together. Decriminalisation would provide a stepping stone for a better life and more rights for a community that has been oppressed for so long.
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5. Are love and sex bad things?
Bollywood centres itself around love and sensuality, Indian culture is literally obsessed with marriage, and hey let's not forget that we are the land of the Kamasutra. So why is it all a bad thing in a country that prides itself in being the world's largest democracy?
According to the University of Oslo, homosexuality exists in over 1500 animal species, so why is it so "unnatural" for humans?
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6. There's no going back
It's not a question of what's natural, it's a question of what's constitutional. Since December 2013 when the SC criminalised homosexuality, activists have worked tirelessly to have their voices heard. NGOs that focus on LGBT rights and welfare have worked with the community and those who are not part of it, with activities and events that empower all. Pride Parades want 377 to go and they won't stop emphasising their message until the law is gone.
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7. Religious leaders are terrified of LGBT empowerment
Why? We don't know...
It's sad that leaders of different religions can unite in hatred by spewing rubbish that homosexuality is unnatural, against Indian culture and the reason HIV AIDS is spread. It's very sad that in the 21st century, religions focus on power and influence rather than on spirituality and communal harmony.
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8. Gay men are victim to blackmail and threats
Men who indulge in casual sex with other men fall prey to blackmail and threats when they are tricked into sex and then beaten up unless they pay a huge amount of money or give away valuables.
It has shoved gay men deeper into the closet while empowering petty criminals and goons who are on the look out for their next victim.
ARMSTRONGECONOMICS.COM
9. It might just end unhappy marriages that never get consummated
Due to the stigma that surrounds homosexuality many gays and lesbians marry members of the opposite sex to appease their family members. This often leads to unhappy marriages where the unsuspecting spouse is the one who is affected the most.
Legalisation of homosexuality would not make people come out of the closet but it would prevent them from being part of unhappy arranged marriages and exploring their sexuality further.
WOMENSHEALTHMAG.COM
10. India should not be in the same league as dictatorships and theocracies
Dictatorships and theocracies around the world, starting with Nazi Germany during the Second World War, and ISIS controlled Syria today, have committed crimes against humanity by persecuting the LGBT community. In Uganda, people were encouraged to report homosexual behaviour to the police so that people with alternate sexualities would be wiped out from the face of society.
As a global player and a developing country, does India really want to associate itself with such Third World countries? If we aspire to be like Europe or the US, shouldn't we share similar values?
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11. Our Asian neighbours are making progress. Where are we?
Nepal, Japan, China, Taiwan, Thailand and Vietnam have legalised homosexuality while some of them even protect members of the LGBT community from discrimination.
Does India want to keep up and be a more liberal society or does it want to continue being the land of bigoted hypocrisy?
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