Sec 377: Battle for Identity

Draft Version: Sec 377: The Battle for Identity (Published in the Asian Age, 2 Feb 2016 (now in the Deccan Chronicle archives online) Siddharth Narrain (Siddharth Narrain is a lawyer, and Research Associate with Sarai-Centre for the Study of Developing Societies (CSDS), Delhi) Two years after the Supreme Court dismissed a review petition filed in Koushal v Naz, in which the Court had held section 377 of the Indian Penal Code to be constitutional, the case has been listed in a curative petition challenging this decision. Section 377 of the Indian Penal Code (IPC) has come to stand as a potent symbol, a call to arms against institutionalized homophobia and discrimination against lesbian, gay, bisexual, and transgender (LGBT) persons in India. Drafted in 1860 by the British in vague and imprecise language (the law uses terms such as ‘carnal intercourse against the order of nature’ and ‘unnatural offence’). Part of the reason for this was that the British administrators were so uncomfortable using specific terms for homosexual sex that they left the law vague. While technically the law covers all non penile-vaginal sexual intercourse, over a period of time, this law has been used mostly to arrest non consensual sex or acts of rape which did not fit into section 375 and 376, the rape law that were defined very narrowly until the 2013 Criminal Law Amendments. Section 377 was also used in cases of child sexual abuse since there was no specific law to deal with sexual violence against children until the Prevention of Children from Sexual Offences Act (POCSO) was enacted in 2012. Section 377 has been used in cases of bestiality, which is not covered by other provisions of the IPC. The case in court however, does not deal with any of these categories of offences. It challenges the use of section 377 to arrest adults for consensual acts of sex. In 2009, the Delhi High Court, in a much-celebrated decision, ‘read down’ the law, holding that it was not applicable to consensual sex between adults in private. In effect, this led to the decriminalization of LGBT persons, since it meant that they were free to have sex with a person of their choice, irrespective of that person’s gender or sexual orientation. The Delhi High Court decision came after an eight- year legal battle that began to attract massive public attention by the time it reached its climax. The then UPA-I government was divided in its stand in court, and the Health Ministry supporting the reading down of the law, while the Home Ministry opposed this. The Delhi High Court in its memorable judgment held that section 377 was violative of the right to life and dignity, and the right to equality of LGBT persons. The Court interpreted ‘sex’ to mean ‘sexual orientation’ in Article 15(2), the non-discrimination clause in the Constitution. In words that reverberate loudly even today, the court held that the Court would uphold constitutional morality rather than popular morality, thus asking the government to abide the secular values of the constitution rather than the moral codes of any religion. The Delhi High Court’s decision was challenged in the Supreme Court by an assorted group of religious and conservative groups and individuals, many of who do not see eye to eye on other issues. In a peculiar way the High Court judgment seemed to galvanise these conservative groups from across the political spectrum. They claimed that the High Court judgment would lead to a breakdown of the moral fabric of Indian society. They also argued that it was not for the courts to decriminalize homosexuality, and that it was the Parliament that was the appropriate forum for this. More than four years after the Delhi High Court decision, the Supreme Court, agreeing with the contentions with this motley bunch of conservative opinion, decided to overturn the Supreme Court’s decision. In a badly reasoned judgment, the court held that section 377 was constitutional, but Parliament was free to legislate on the matter. This despite the UPA-II government wholeheartedly supporting a reading down of the law in court, and very strong evidence in the form of affidavits, reports and testimonies that was presented before the court showing that the law does adversely impact the rights of LGBT persons. The Supreme Court’s judgment was challenged in a review petition, which was dismissed. The matter was then argued through a curative petition, a relatively recent judicial innovation that enables the Supreme Court to correct mistakes in judgments where there is a gross miscarriage of justice or where principles of natural justice have not been followed. It says something about the grit and determination of LGBT rights activists and the lawyers fighting this case, that they were able to get an open hearing for the curative petition. Having come this far, it is understandable that there is much nervous anticipation for tomorrows court hearing. Since there is very little precedent, the court itself cannot bank only on its previous decisions. The Supreme Court has to balance its duty to ensure justice for millions of people whose rights will be affected by this decision, while ensuring that there are cogent reasons that dictate that its curative power is exercised in this particular matter. The Court has the option of admitting and hearing the matter, referring the matter to a Constitutional Bench of five or more judges, or dismissing the case. If the curative petition is dismissed it may be years before another constitutional challenge to 377 is brought before the courts. The 377 litigation has become the defining legal battle of our generation, gathering the support of leading senior lawyers, many of who will be fighting the battle in court on Tuesday. Whatever the outcome of tomorrow’s hearing, the legal battle against section 377 has politicised generations of queer activists, sparked furious public discussion, given rise to fierce debates within the LGBT community, influences popular culture, and raised awareness around sexuality and gender related issues at an unprecedented scale. All eyes will be on the Supreme Court tomorrow, as people across the world watching with bated breadth, and hoping that the Court will take the courageous step of correcting its mistake. After all, to err is human, to correct divine. -----